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AUTHENTICATED 
US. GOVERNMENT 
INFORMATION ^ 


HOLIDAY ON ICE: THE U.S. DEPARTMENT OF 
HOMELAND SECURITY’S NEW IMMIGRATION DE- 
TENTION STANDARDS 


HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATHH]S 

ONE HUNDRED TWELETH CONGRESS 

SECOND SESSION 


MARCH 28, 2012 


Serial No. 112-104 


Printed for the use of the Committee on the Judiciary 



Available via the World Wide Web: http://judiciary.house.gov 


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73-543 PDF WASHINGTON : 2012 


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COMMITTEE ON THE JUDICIARY 


LAMAR SMITH, 


F. JAMES SENSENBRENNER, jR., 
Wisconsin 

HOWARD COBLE, North Carolina 
ELTON GALLEGLY, California 
BOB GOODLATTE, Virginia 
DANIEL E. LUNGREN, California 
STEVE CHABOT, Ohio 
DARRELL E. ISSA, California 
MIKE PENCE, Indiana 
J. RANDY FORBES, Virginia 
STEVE KING, Iowa 
TRENT FRANKS, Arizona 
LOUIE GOHMERT, Texas 
JIM JORDAN, Ohio 
TED POE, Texas 
JASON CHAFFETZ, Utah 
TIM GRIFFIN, Arkansas 
TOM MARINO, Pennsylvania 
TREY GOWDY, South Carolina 
DENNIS ROSS, Florida 
SANDY ADAMS, Florida 
BEN QUAYLE, Arizona 
MARK AMODEI, Nevada 


Texas, Chairman 
JOHN CONYERS, Jr., Michigan 
HOWARD L. BERMAN, California 
JERROLD NADLER, New York 
ROBERT C. “BOBBY” SCOTT, Virginia 
MELVIN L. WATT, North Carolina 
ZOE LOFGREN, California 
SHEILA JACKSON LEE, Texas 
MAXINE WATERS, California 
STEVE COHEN, Tennessee 
HENRY C. “HANK” JOHNSON, jR., 
Georgia 

PEDRO R. PIERLUISI, Puerto Rico 
MIKE QUIGLEY, Illinois 
JUDY CHU, California 
TED DEUTCH, Florida 
LINDA T. SANCHEZ, California 
JARED POLIS, Colorado 


Richard Hertling, Staff Director and Chief Counsel 
Perry Apelbaum, Minority Staff Director and Chief Counsel 


Subcommittee on Immigration Policy and Enforcement 


ELTON GALLEGLY, California, Chairman 
STEVE KING, Iowa, Vice-Chairman 


DANIEL E. LUNGREN, California 
LOUIE GOHMERT, Texas 
TED POE, Texas 
TREY GOWDY, South Carolina 
DENNIS ROSS, Florida 


ZOE LOFGREN, California 
SHEILA JACKSON LEE, Texas 
MAXINE WATERS, California 
PEDRO R. PIERLUISI, Puerto Rico 


George Fishman, Chief Counsel 
David Shahoulian, Minority Counsel 


(II) 



CONTENTS 


MARCH 28, 2012 

Page 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 
of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 
of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary 11 

The Honorable Pedro R. Pierluisi, a Representative in Congress from Puerto 
Rico, and Member, Subcommittee on Immigration Policy and Enforcement .. 12 

The Honorable John Conyers, Jr., a Representative in Congress from the 
State of Michigan, and Ranking Member, Committee on the Judiciary 13 

WITNESSES 

Kevin Landy, Assistant Director, Office of Detention Policy and Planning, 

U.S. Immigration and Customs Enforcement 

Oral Testimony 18 

Prepared Statement 20 

Jessica M. Vaughan, Policy Director, Center for Immigration Studies 

Oral Testimony 31 

Prepared Statement 33 

Chris Crane, President, National ICE Council 

Oral Testimony 39 

Prepared Statement 41 

Michelle Brane, Director, Detention and Asylum Program, Women’s Refugee 
Commission 

Oral Testimony 48 

Prepared Statement 51 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Con- 
gress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement 3 

Material submitted by the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Ranking Member, Committee 
on the Judiciary 

Article from The New York Times titled “Detention Is No Holiday” 14 

Letter to the Honorable Lamar Smith, Chairman, Committee on the 
Judiciary 16 

APPENDIX 

Material Submitted for the Hearing Record 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Ranking Member, Committee 
on the Judiciary 74 


(III) 



IV 


Page 


Prepared Statement of the Honorable Pedro R. Pierluisi, a Representative 
in Congress from Puerto Rico, and Member, Subcommittee on Immigration 


Policy and Enforcement 79 

Material submitted by the Honorable Zoe Lofgren, a Representative in Con- 
gress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement 81 

Press Release, February 28, 2012, from the Honorable Lamar Smith, a Rep- 
resentative in Congress from the State of Texas, and Chairman, Committee 

on the Judiciary 199 

Prepared Statement of Cheryl Little, Esq., Executive Director, Americans 
for Immigrant Justice (formerly Florida Immigrant Advocacy Center) 200 



HOLIDAY ON ICE: THE U.S. DEPARTMENT OF 
HOMELAND SECURITY’S NEW IMMIGRATION 
DETENTION STANDARDS 


WEDNESDAY, MARCH 28, 2012 

House of Representatives, 

Subcommittee on Immigration 

Policy and Enforcement, 
Committee on the Judiciary, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:36 p.m., in room 
2141, Rayburn Office Building, the Honorable Elton Gallegly 
(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, Lofgren, Conyers, 
King, Gowdy, Ross, Waters, and Pierluisi. 

Staff present: (Majority) Dimple Shah, Counsel; Marian White, 
Clerk; and (Minority) Tom Jawetz, Counsel. 

Mr. Gallegly. I call the Subcommittee to order. I would ask 
unanimous consent that the Chair would have the right to recess 
the proceedings at any time should there be a vote call on the floor. 

Hearing no objection, that will be the order. 

Today our hearing focuses on the detention of illegal and crimi- 
nal immigrants. Erom the onset, I would like to make it clear that 
no Member is against the humane treatment of detainees. How- 
ever, I am concerned that ICE’s new Performance-Based Detention 
Standards, because they unreasonably put the interests of remov- 
able aliens ahead of the interests of the Nation. 

Full implementation of the new detention standards is likely to 
be extremely costly. Nevertheless, cost estimates are not addressed 
at any point in the 400-plus page standards. Has ICE considered 
the impact of this new policy on America and the American tax- 
payers? 

To make matters worse, the impetus for the new standards have 
little to do with a need for detention reform. Rather, they are part 
of an extensive public relations effort aimed at pro-amnesty advo- 
cates. 

Shortly after the detention standards were released, DHS an- 
nounced the opening of a new detention facility in Texas. A San 
Antonio newspaper describes it as being more like a private college 
setting than a detention center. 

It is outrageous that the immigration detention facilities have 
morphed into college campuses, particularly when we are dealing 
with a facility that costs the taxpayer $32 million to start with. 

( 1 ) 



2 


This is especially true when American families struggle to make 
ends meet. 

However, even these changes do not make advocates happy. They 
have consistently said the new detention facilities are improved, 
but do not go far enough. What will ever enough be? Numerous 
statements issued by the advocates make clear they are opposed to 
the immigration detention in and of itself. 

DHS’s new detention standards are part of a trend. The trend 
began with leaked DHS memos that discussed mechanisms the 
agency could utilize to circumvent Congress and provide amnesty 
by administrative action. It continued with DHS issuing memos re- 
garding priorities whereby potentially millions of illegal immi- 
grants could be exempt from removal. These memos were super- 
seded by new prosecutorial discretion policy allowing those in viola- 
tion of the law, who are already in the removal process or ordered 
removed, to remain here undisturbed. 

And now, we have the release of new standards involve policies 
for detainee-friendly detention centers for those illegal and criminal 
immigrants that DHS does intend to detain, and, again, all at tax- 
payer expense. 

I have a recommendation to the Administration. The best way to 
help immigration detainees is not to roll out the welcome mat at 
detention facilities. It is, reduce the amount of time they spend in 
detention by making better use of the tools Congress has provided 
to process illegal immigrants for removal more expeditiously. It 
would be best if ICE spent more time, energy, and resources on re- 
moving illegal and criminal immigrants. 

With that, I will yield to the gentlelady, the Ranking Member, 
Ms. Lofgren. 

Ms. Lofgren. In September of 2007, an armed ICE agent trans- 
ported Ms. M.C. from the Krome Detention Center to the Broward 
Transitional Center. But instead of driving straight to Broward, 
the agent took her to his house, forced her to perform oral sex, and 
then forcibly raped her. According to documents related to his 
criminal conviction, the agent kept his firearm in his gun belt at- 
tached to his waist at all times during the sexual assault. 

I ask unanimous consent to enter the full statement of Ms. M.C. 
into the record. 

Mr. Gallegly. Without objection. 

[The information referred to follows:] 



Americans for 
Immigrant Justice 

tomiertyftM<(a Confer 


STATEMENT FOR THE RECORD SUBMITTED BY 

M.C. 

Clicntf Awcricons fot tfnfnigront Justice ifowwtt/ fIoihSq /fntnlgnnt Adwcocy CentftJ 
March 26. 2011 

A Brutal Rape 

1. My name is M.C. I am a native of Jamaica. On September 21. 2007, 1 was picked up by 
an immigration official and brought to Krome Detention Center in South Miami. 1 was in the 
booking area where I was the only female. Women aren't held at Krome, so I was waiting to be 
sent somewhere else. 

ICE Officer Vasquer 

2. I was waiting at Krome for about 15 or 20 minutes. An ICE officer (whom I later learned 
was named Officer Vasquez) came in and looked at me. He asked the desk officer where I was 
going and they said BTC (Broward Transitional Center). He said that he was going up to BTC and 
that he could take me. He said to me, "I'll rescue you so you don't have to wait for them to 
process all the men." He picked up my paperwork from the desk officer and told me to follow 
him. 

3. While we were still inside Krome, Officer Vasquez look my handcuffs off me. He said, "I 
don't cuff females." We went outside to a van. He opened the back of the van and locked me 
In one of the cages. 

4. While I was in the cage, he asked if I was hungry. I said I was. He said he was going to 
put me in the front of the van because it was more comfortable, but first he had to get out of 
the Krome vicinity. After a while, he pulled over on a street, let me out of the cage and put me 
in the front of the van with him. 

5. When I was in the front seat, he asked if I wanted to call anyone. I said yes, I wanted to 
call my daughter. At this point, I thought I was going to be deported very quickly, so I was 
talking to my daughter about making arrangements for me back in Jamaica. 

6. Then Officer Vasquez said to me, "So, are you wearing that federal underwear?" He 
said, "Show me your underwear." I told him no. I thought it was very strange he would say 
something like that. 




3000 aiscAyneSivd.. Suite 400 • Miami, Florida 33137 • 305.573.1106 • Ua: 305.576.6273 • aifusllca.org 



4 


■ 7 . Whatthe officer said next madetneaart to feel even mara uncomfortable. He said, 
"You know what attracted ms to vbm? Ynu have beautifuteyes " I didn’t respond becausei 
was starting to get worried. It was totally inappropriate. 1 was: hoping that he would jaststop 
talking about this. 

8 Off'cer Vssquet picked up his cell phone and made a call. He wa.s spoakiuH to someone 
in Spanish I don't understand Spanish, so I didn't know What he was saying. 11 turns out iha', 
he had called his wife to check If she was home. He told me that she was not at home. 

9. Next. I found out why he'd c, died her. After he hung up. Officer Vasquet told me th-itlio 
"wants to eat my pus.sy." He told me he wanted me to take off my pants so he couid touch mr; 
in the van, but that didn't make .sense because people could have seen. SO thatis why he taiir-d 
hii wife- he wanted to take me to his house to have sex with me;. 

10:. Suddenly, my he.irt sunk and I tried not to panic. 1 couldn't believe he had said that I 
knew he had a gun - I. had seen it when we were going to the van at Krnme, it was in a holster 
on hiship. 1 didn't respond or say anything, I didn't know whatto think, i really prayed he was 
joking. I am not sure whv,.hut I remember that it was 1:11 pm when he hung up with liis wife 
.and said that to me. I was staring at the clock, 

11, He kept joking and talkingto me like we had known each other for a long time. He was 
flirty and very comfortable -it seemed like he had done this before, I wanted to change the 
subject. 1 was hoping I could distract him. 1 asked him questions about his family and his job. 

He told me he was 37 years old and that he had worked at STC for about three years. 

11. Officer Vasquet asked me where 1 lived. He asked me if 1 knew my way around Broward 
County very well 1 told him I didn't know Broward County, but that wasn't true. I ‘hirfc he 
wanted to make sure that I wouldn't be able to keep track of where he was taking me, 

13; Driving from Krome to BTC, you would normally drive North on the furnpike all the way 
to Sample Road, then turn left on Powerline Road to BfC. Instead, Officer Vasquez turned off 
on Cammercial Boulevard. He drove west on Commercial to Rock island Road. Thert he went 
north on Rock Island to Bailey Road, He went west on Bailey, Road to the place where his house 
was located. He made a left turn into his housing community, 

I'l. 3y This time, i was really scared, I was nervous, anaious, and angry all nt the t„iino tu ru; 
Officer Vasquez said that he loved to give Oral sex to Black women, 1 kept quiet and d'dn'l say 
anything, I was just praying, I tried tellingmyself that this wasn't feaily happening. 

Sexual Assault and Rape at his House 

.15. He puHed up into his driveway. Hegotoutoftheyanand ndmeoverto my side Hu 
opened tfit'docr and told me get out of the van. 1 couldn't refuse him. Ho had a gun and ail 
the oower. I knew I tiaci to do what he said. So when he told me to gut out, I did. 



5 


16. When we got into the house, hesaid to me, “Take off those federal clothes." I couldn’t 
halieve this was happening, itookofftny sweatpants, sneakers arid underwear, llkehe said. 

He disappsareri for a second and came back witli a condom. 

17 I just stoorithereprayingto myself, baying, "God, please don't let this mail hurt me ' 1 
was r.sk.ng God to have mercy so this man wouldn't kill me. 1. was afraid he would kil me or 
serioLisly hurt me when he was done With me. All I could think, of was that hs w'as tol.'.liy ciacy 
for doing this. If he was crazy enough to bring me to his house and rape me, then what would 
he be willing to do to cover ft up? 

IS. Officet Vasqufiu ordered me to sit on the sofa. He told me that the house, has tniue 
exits. He pointed to where they were, but t wasn't really paying attention. I was praying. He 
told me i had to look out for a black Acuta car that his wiferirives. He said, "If you see that car, 
you have to grab your clothes and get out right away." Hiat jiisi added even more Insult to 
injury. This man was going to raoe me and he wanted me to act as his. look out! ( was so 
ashamed and humiliated. 

19. Officer Vasquet kneeled in front of me and pushed me back on the sofa. He held my 
legs up and had oral sex with me. 1 remember looking at the top of his head and thinkmg how 
rruch l just wanted to hit him or push him away., Butlcouldn’t. he had a gun and i truly 
believed that if I fought or tried to run away, he would kill me. if it was any other man, l would 
have fought him off. 1: would have screamed, hit, kicked, punched. I felt completely out of 
corUrbtand I couldn't do anything about what was happening to me- llwas horrible. 

20. : When he finished, he told me I should "return the favor," He took out his penis. Itwas 

erect. He told me i should 'suck his dick," He held the back of my head and pushed his penis 
Into my mouth i couldn't stand it. I told him that I’ve never been able to do this. Ididn’twant 
to make him angry, butl couldn't give this man oral sex, 

21. Then Officer Vasquez ordered me to kneel on the sofa , and turn away from him He put 
an the condom and had sex with me. Words can't describe what was going through my hearl 
this whQfe time. I was just dated. I kept saying to myself, "How can t stop But I was just 
too seated. There; was nothing I could do, but pray and wait for it to be over. 

22. After he was done, i just sat there on the sofa without any underv/esr o.n Officer 
Va.squet walked toward the dining room table to where there must have been .mother room or 
something I giies.s he got rid of the condom. He came back with wet w'ifies .a.'id gave me one. I 
wiped myself off wi th It, I got dressed. 

73. iie said, "Come on, feTS go." The entire ordeal had lasted probably about IS minutes 
We started to walk outside. He stoppedto make sure no one was watching, I was still ternfmel. 
I kept thinking that since he had gotten hisway with me, he was probably going to try to kill me 
to cover it up, Iwas afraid that he wasn't even going, to take me to BTC; he might drive me 
somewhere else to kill me. 



6 


24. There was a van parked across the sttee* tom hishatee. The lights were on, so it 
looked tike someone was in the van, i thoughtaboui rurmingover there and screaming far 
help itut tiien I thought he might lust shoot me in the back and say that i tried to escape from 
liiin. I raaliy believecl he was capable of killing me. So I went with him hack to the van He let 
mo bark m the fiont of the van again. We started driving toward BTC. 

25. By this time, Officer Vasquez was talking and acting like everything wastotaily normal 
He told me that he was going to Jamaica on October 16th. He. said 1 would probably be 
deported by t hen and he wanted me to come to Kingston to tneot up with him. He said he was 
takinga prlsonfr bark to Jamaica, He explained that when you need to hand someone ovei’ tc 
the govarnment, someone from ICE accompanies thenn. Every month, they rotate by alphabet 
and it was his turn this time. 

26. He said he didn't want to give me hiS phone number right now because sorheonB might 
find It white > was delaines. But he did give me his email ad3re,s5. He took my address book 
anti wrote his email address in ilhittisetf, 

27. I asked him if he d done that with other detainees before. He said no, but that ha had 
looked at my record and saw that I was “clean." I guess be meant that he locked to make sure i 
don’t have HIV or any other diseases, I think he has definitely done this with other v/omen, 

Goingto BTC 

28. When we were almost back to BTC, Officer Vasquez took me from the front of the van 
and locked me back in one of the cages. He said he couldn't let the people at ETC see him 
carrying me in the front of the van, but acted like he had done me this huge favor by letting ma 
ride upfrontwilh him. 

29;;: m fact, since we met, he'd kept acting like he was doing me all lhe.se favors. He told me 

he was ' rescuing me" by taking mt? fromKcome, let me sit up front. It was so crazy that he 
thought I was going to actually be grateful tO him wlien he was i esily kidnapping and raping 
me. At one point, ! asked him if he was drunk because I found it impossible to believe he could 
actuaily think this was ail okay, 

50. When we got to BTC. Officer Vasquez handed me off to a female BTC guard. Bar..aitse 
they seemed to be friends and they worked together, I was too afraid to say anythui.e to her. I 
didn't think she would reafiy befteve me, .1 mean, J lived through it and still find it hard to 
believe iiial this actually happened. 

It. i war booked In and brought'to my room, i just laid on my bed in the lets; pns'tiO'' 
crying. I was so tmurrtatiied: i didn't want to think about what had happened,. 

How Many Others? 



7 


32. At first, after ttite happened tome,-! jostwantetl logo home. I didn't want to think 
about what had happened to me and} was soatedlim officer would tty lo hurt: me. I was also 
worried about my family 

33 So, I was thinking about not telling anyone and gMng up. I thought if I could lust leave 
and put this behind me, I could forget about it and go on with my life. I know it's not leally that 
easy, but I wanted it to he. 

34. I also realised that this officer should not get away with this. He was .so comfortable 
with everything thet he did that day. This makes me think he h,as done this before and that he 
wnulri almost certainly do it again, if he could get away wdh if. How many other women had 
beer, attacked? Mow many of them have already been deported so they couldn't do anything 
about, it'? I think that Officer Vasquet chose me because he thought I was going to be dcrjoried 
vsf'f quickly and what was I going to do about it, 

Continuing to Suffer 

35. Once the sexuai attack and rape were over, the effects were so awful, i felt like I'm riot 
the same person, I was scared all the time. I used to be a really outgoing, friendly, co.nfidsnt, 
Strang woman. Bur then I could hardly look people in the eve. I walkeo around with my head 
down and I felt like people were looking at me. I was so ashamed of what happened to me. I 
had to keep telling myself it's not my fault. 

36 f could hardly steep. 1 had rrightmares every night. Sometimes I woke up screaming 
When ! closed my ayes at night, I just saw his face. 1 felt like I've lost all controi. 

37. . Thank God that I found the Florida Immigrant Advocacy Center, now known as 
Americans for Immigrant justice. They took my case and aisked the U..S. attornay to investigate 
the crime against me. And Officer Vasquer pled guilty. He wa.5 sentenced to ST months in 
prison as a result of hi.s guilty plea to rwo counts of sexual abuse on me. The judge noted the 
horrific nalure of the cunie, and the message it send,s to other immigration detainees about the 
system of fustice Vazquez had .sworn to uphold, also guided his decision. Thi? Judge also said 
that the evidence against Vazquez was overwhelming and, rf the case had gone to trial, ne 
would most likely have received a much harsher sentence. A pre-senteiicmg report 
recommettded a sentence of up to 14 year*. 

38, The unprovoked and. unsolicited abuse that Wilfrado Vasquez infiiaed upon me or 
September 21, 20Q7 was well beyond anything that any woman should have to experience 
•anywhere and e,spEcia!iy within the United States- 

,39. I must expo.‘SS my deep frustration and sense of outrage toward tne Ueoartmem of 
Homeland 5ecitrity that apparently know, or .should have known, that when I was placed In the 
sitie custody ot Wdlrecio Vazquez f would be a likely victim. 



8 


40. ( no longerwantto feel like a-victim. I'm better now, but it's not like it's over. I don't 

want what happened to me to happen to anyone else. It was so horrible. So anything i can do 
to call attention to this kindofabuse, I willdo. I thank Rep, Logfren and members of the 
committee the apporlunity to submit this statwent, 


Ms. Lofgren. This was not an isolated incident. Four years ear- 
lier, another ICE agent was charged criminally with raping a fe- 
male detainee during transportation, and last fall an ICE guard 



9 


was criminally charged after he sexually assaulted at least 9 
women during transportation. 

Male guards have also sexually assaulted women while per- 
forming strip searches. In 2007, women at the San Diego Correc- 
tional Facility filed complaints about a guard who sexually as- 
saulted them when strip searching them in a secluded room. An- 
other guard in Texas pled guilty to multiple criminal charges stem- 
ming from similar abuses. 

Some of the detention reforms at issue today were adopted to 
protect female detainees from such horrors. The new standards, for 
example, prevent a lone officer from transporting or strip searching 
a single detainee of the opposite sex. If this were in place earlier, 
Ms. M.C. and countless other women could have been spared rape. 

The new reforms could have spared Francisco Castaneda from 
amputation of his penis and then death. He testified in 2007 before 
this Subcommittee about the serious medical neglect he experi- 
enced during his 10 months in detention. Suffering from excru- 
ciating pain, he spent months begging for a simple biopsy that had 
been repeatedly ordered by medical professionals. ICE refused to 
authorize the medically-ordered biopsy at every turn, claiming it 
was elective. ICE finally released Francisco because of his deterio- 
rating health and the threat of litigation. He took himself to an 
emergency room where a simple biopsy confirmed that he had 
penile cancer. Because it had not been caught earlier, the cancer 
metastasized and spread throughout his body. After having his 
penis amputated and receiving chemotherapy, Francisco came to 
Congress with his teenage daughter to tell his story so that others 
would not have suffered unnecessarily the way he had. He died just 
4 months later. 

According to the judge who presided over his Federal lawsuit, the 
case represented “one of the most, if not the most, egregious 8th 
Amendment violations the court has ever encountered.” The United 
States ultimately settled the lawsuit for $2 million. 

This Subcommittee also considered the story of Jason Ng, a com- 
puter engineer from New York with a U.S. citizen wife and two 
U.S. children. Although he had a pending green card petition and 
no criminal history, Jason spent more than a year in detention due 
to government error in a previous proceeding. In detention he com- 
plained about crippling back pain, but guards said he was just fak- 
ing. They ignored his request for medical care. They even denied 
his request for a wheelchair. One day guards pulled him from his 
bed, dragged him face down through the facility, placed him in re- 
straints, and pressed him up against the wall while he screamed 
and cried for help. These photographs taken the following day at 
the hospital show the bruises that he suffered. When doctors fi- 
nally examined Jason, they diagnosed him with advanced liver dis- 
ease and a fractured spine. Despite a broken back, guards kept him 
restrained in the hospital until he died 5 days later. 

Other photographs here are of Boubacar Bah, who died in a simi- 
lar fashion. While at the Elizabeth Detention Center in New Jer- 
sey, a detainee saw Boubacar collapse and violently hit his head on 
the floor. He was taken to the medical ward in shackled, but 
guards mistook his calls for help and erratic behavior as resistance, 
so they moved him to a disciplinary cell. He lay in that cell for 14 



10 


hours, despite repeated notations that he was unresponsive and 
foaming at the mouth. When they finally took him to the hospital, 
doctors diagnosed him with inter-cranial bleeding. They rushed 
him into surgery, hut it was too late. He had slipped into a coma 
and died 4 months later. 

Incidents like these led this Subcommittee to hold hearings in 
2007 and ’08. Those hearings uncovered policies that led to suf- 
fering and death. We learned that ICE was tracking the amount 
of money it was saving by denying critical medical care for things 
like HIV, and head injuries, and tuberculosis. ICE could not even 
account for the detainees who died in its custody. Only after an ex- 
tensive search ordered by new director Morton did they learn about 
10 previously untracked deaths between 2004 and 2010. 

To its credit, this Administration came in, admitted the problem, 
and fundamental change was necessary to prevent unnecessary 
suffering and death. That is the purpose behind the new detention 
standards at issue today. So, I was deeply disappointed to learn of 
the title of this hearing, “Holiday on ICE.” Certainly Francisco, 
Jason, or Boubacar would not think that their deaths in custody 
were any kind of a joke. I know, and Mr. Gallegly called me to say 
that he regretted the title of this hearing, and I accept that call on 
his part. However, I do not accept the criticism of the Administra- 
tion expressed by the Chairman of the full Committee in his press 
release where he criticizes these detention standards as a hospi- 
tality guideline. 

I do not think that it is a hospitality guideline to prevent rape 
of detainees, women who have done nothing wrong, to prevent 
death and abuse of detainees in custody. I do not think women de- 
serve to be raped. I do not think individuals deserve to be tortured 
through physical or medical abuse or gross medical neglect. I do 
not think women deserve to be shackled when they give birth. 

Throughout this Congress, we have seen elements of what I 
think of as sort of a Republican war on immigrants. In today’s 
hearing, I am afraid we are starting to see where the war meets 
the Republican war on women. 

And just a note on cost. You know, it costs about $122 a day to 
keep a detainee, a civil detainee, locked up in the immigration sys- 
tem. The new, less restrictive system is estimated to cost a little 
over $56 a day. So, these new standards will avoid torturing indi- 
viduals. They will avoid the $2 million judgments for hurting or 
killing people, and it also will cost us less than half of the current 
costs. 

So, Mr. Chairman, I regret the focus of this hearing. I think it 
is wrong. And I look forward to having an opportunity to confer on 
this matter further, and yield back. 

Mr. Gallegly. The gentlelady’s time has expired. 

I would just like to respond to one thing in your statement, Zoe, 
and that was something that was laid before me yesterday, that we 
give anecdotal examples, none of which goes unrecognized as seri- 
ous. None of these anecdotal examples seem to be more serious to 
me than one came across my desk yesterday when a criminal alien 
was released recently from detention because his native land would 
not repatriate him, and within days of the time he was released, 
he murdered 5 people in San Francisco. 



11 


With that, I would yield 

Ms. Lofgren. Mr. Chairman, since you have raised that issue, 
I think it is only fair if I be given a few 

Mr. Gallegly. Okay. 

Ms. Lofgren [continuing]. Moment to respond. That individual 
should have been deported to Vietnam. Vietnam refused to take 
him. As you will recall, we had a hearing on a bill authored by a 
Republican Member of the Committee that was so poorly drafted, 
it would have prevented Benjamin Netanyahu from being able to 
come to the United States to deliver his address to the Joint Ses- 
sion of Congress. 

At that time, I indicated a willingness to write a bill that would 
actually work to make sure that an individual like this could, in 
fact, be deported. I know that there has been some discussion at 
the staff level, but we have not reached an agreement on a work- 
able bill. And I would urge the Chairman to intervene to see if we 
cannot get some consensus because there is not an argument. 

Mr. Gallegly. The gentlelady can rely on that. It was not my 
intent to get into a debate when we have a hearing going on. The 
only point I was trying to make is that there are many anecdotal 
examples that none of us condone, none of us can accept, and we 
are all, I believe, charged with the responsibility of trying to find 
the best way to correct it. And the status quo is not working. 

I yield to the gentleman from Texas, the Chairman of the full 
Committee, Mr. Smith. 

Mr. Smith. Thank you, Mr. Chairman. 

First of all, let me say to the gentlewoman from California, Ms. 
Lofgren, that we actually marked up a bill in the full Judiciary 
Committee, the Secure Communities Act, which would have pre- 
vented that individual from being released, and would have pre- 
vented the deaths of those 5 individuals. And I am sorry she voted 
against that bill because if she had have voted for it, we might 
have had it passed by this time. 

Mr. Chairman, on February 28th, 2012, U.S. Immigration and 
Customs Enforcement released about 400 pages of new Perform- 
ance-Based National Detention Standards. But the Administra- 
tion’s new detention manual reads more like hospitality guidelines 
for illegal immigrants. 

According to the preface, the detention standards supposedly 
“were drafted with the input of many ICE personnel across the Na- 
tion, as well as the perspectives of non-governmental organiza- 
tions.” 

But the preface fails to disclose that the union that represents 
ICE detention officers, who are among those most affected by these 
new standards, was not a part of a process that will have a large 
impact on their own safety. Neither were advocates for immigration 
law enforcement or advocates for American taxpayers who will 
have to pay for the new standards. 

Instead, ICE consulted with those who appeared to consist pri- 
marily of pro-illegal immigrant groups when it drafted the new de- 
tention standards. 

Under this Administration, detention looks more like recess. 
While funds for American students’ physical education classes are 
being cut, the new detention standards expand recreation for illegal 



12 


immigrants. For instance, illegal and criminal immigrants in ICE 
custody will have options such as soccer, volleyball, and basketball. 
It would be nice if all American students got those options. 

ICE wasted no time in putting their new standards into practice. 
Immediately following the release of the new detention manual, 
ICE opened up a new, state-of-the-art detention facility in Karnes 
City, Texas. The new detention facility was built with specifications 
set by ICE, which involved limited public scrutiny and no congres- 
sional oversight. 

Among the new amenities, the Karnes City facility contains a li- 
brary with free Internet access, cable TV, an indoor gym with bas- 
ketball courts, soccer fields, and sand, and that is for beach 
volleyball. Instead of guards, unarmed “resident advisors” patrol 
the grounds. And the cost of the complex: over $30 million taxpayer 
dollars. 

To make matters worse, the new standards expand the complaint 
process against ICE officers and facilities. It offers numerous ave- 
nues for complaints, unlike the Bureau of Prisons, which has a sin- 
gle streamlined process for complaints. Detained illegal immigrants 
can complain to ICE’s Office of Professional Responsibility, the De- 
partment of Homeland Security Office of the Inspector General, or 
the DHS Office of Civil Rights and Civil Liberties. 

With no protections against false accusations of abuse filed by 
detainees, and a process biased against ICE agents, the new deten- 
tion standards could subject the agency and its employees to con- 
stant and frivolous lawsuits. 

It is no surprise that an agency that considers illegal and crimi- 
nal immigrants it detains as its “customers,” ranks — listen to this, 
Mr. Chairman — ranks 222nd out of the 240 government agencies 
surveyed by the Partnership for Public Service for employee satis- 
faction. 

This hearing is entitled, “Holiday on ICE,” because ICE has de- 
cided to upgrade accommodations for detained illegal and criminal 
immigrants. While we would all like to be upgraded, we do not 
have the luxury of billing American taxpayers or making Federal 
law enforcement agencies our concierge. 

The Obama Administration should put the interests of American 
taxpayers ahead of illegal and criminal immigrants. 

Mr. Chairman, I will yield back. 

Mr. Gallegly. The gentleman from Michigan from Michigan, the 
Ranking Member of the full Committee, Mr. Conyers. 

Mr. Conyers. Thank you. Chairman Gallegly. With your permis- 
sion, I would like to yield two of my minutes to the former attorney 
general of Puerto Rico, the Honorable Pedro Pierluisi. 

Mr. Gallegly. Mr. Pierluisi, 2 minutes. 

Mr. Pierluisi. Thank you, Mr. Chairman. Thank you. Ranking 
Member Conyers. 

Mr. Chairman, I must respectfully say that I find the premise of 
today’s hearing to be misguided and, frankly, appalling. Our immi- 
gration detention system has serious problems. The evidence is as 
well documented as it is heartrending. 

Over 110 people have died in immigration custody since 2003. 
Too many others have been subject to rape, abuse, or medical ne- 
glect. Although there is still a long way to go, DHS and ICE de- 



13 


serve credit for making important strides in reforming our deten- 
tion system as reflected in the 2011 National Detention Standards. 

Rather than welcoming these common sense standards and seek- 
ing their implementation at ICE facilities across the Nation, my 
colleagues on the other side of the aisle have claimed that detain- 
ees are now being pampered. That assertion does not even pass the 
laugh test. But nohody should find it amusing. 

Mr. Chairman, all Members of this Subcommittee are blessed to 
be Americans, citizens of this great democracy, which has done so 
much to make the world a better, freer, more humane place. But 
this love of country should be tempered by a sense of humility, 
rooted in the knowledge that we could just as easily have been 
born in a darker corner of this world where liberty or economic op- 
portunity is in short supply. We should have more empathy for 
men and women who have left behind everyone and everything 
they know in order to reach our shores, especially since many de- 
tainees have violated no criminal law, and those that did have al- 
ready served their sentences. 

Instead of simply paying lip service to the idea of humane treat- 
ment, we ought to promote policies that treat people with decency 
and compassion, guided by the understanding that there, but for 
the grace of God, go I. 

I yield back. 

Mr. Conyers. Thank you very much. 

Chairman Gallegly and to our full Committee Chairman, Lamar 
Smith, I have always been proud of the fact that the House Judici- 
ary Committee has always evaded the partisan tiffs that frequently 
characterize what goes on in the House of Representatives. And I 
regret that today we are confronted with a dilemma that I would 
like to address and see if we can somehow rebuild the good will 
that has always existed on this Committee. 

Now, as I look across this audience, I would be pretty naive not 
to notice that there are many more women in this audience than 
is usually the case. And I think it is because of the nature of the 
hearing that is going on today. 

I want to remind everybody, and with the permission of the 
Chairman, I would like to put into the record the New York Times 
editorial of today by this famous Haitian writer, Haitian-American 
writer — she has citizenship in both countries — Ms. Edwidge 
Danticat, whose article is entitled, “Detention is No Holiday.” 

Mr. Gallegly. Mr. Conyers, I assume you are referring to what 
was, I believe, to be an op-ed, not an editorial? 

Mr. Conyers. Oh, I am sorry. Yes, it was an op-ed. 

Mr. Gallegly. Okay. Without objection. 

[The information referred to follows:] 



14 


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»13 

Detention Is No Holiday 

By EOWIDGE DANTICAT 
Miami 

lAMAR SMITH, the chairman of the House Judiciary Committee, is presiding over a heoring WcdneMlny on new 
guidelines for immigration detention that were issued last month and are now beginning to go into effect. The 
oimcial (and (acetiousj dlle of liie hearing is “Holiday on ICE," in refen?nce to the more humane treatment 
undocumented immigrants should now receive after being picked up by Inuntgration and Customs Enforcement. 

Mr. Smith, a Republican from Te.xas, and members of the House Subcommittee on Immigration Policy and 
Enforcement, which is holding the hearing, seem to think Uie United States is too nice to the immigrants it 
detains. We are being too generous in detriding to give them safe water, an hour a day of recreation, and off-site 
medical care if they ore in danger of dying. 

With draconian immigration laws spreading acnxss the country, immigration detention is one of the fastest- 
growing forms of incarceration in the United States. There are more than 30,000 men, women and children in 
immigration cusUxly, spread throughuuLjaiLs as well as detention centers, some of which are outsourced to 
private companie.**. It is only fitting that ICE seek out more humane ways of treating this gniwing population. 

The new ICE guidelines are not perfect. They' do not offer, for example, alternatives to jail-like detention, even 
for unaccompanied minors, the elderly, the disabled or pregnant women. But they are a step forward. In addition 
to medical care, safe water and limited recreation, they also require that staff members not perform strip 
searches on detainees of the opposite sex and that detainees not be used for medical experiments or for clinical 
trials without informed consent. They will crack dowi) on sexual assault by staff members, contract personnel ot 
oUier detaiuees and suggest that victims of sexual abuse be giv'en access to emergency medical treatrnenL 

Clearly, these uew standards are far from luxurious. They simply help protect basic human rights. 

The flippant title of the hearing shows a blatant disregard for the more than 110 people who have died in 
immigration custody since 2003. One of them was my uncle Joseph, an Si-year-nid throat cancer .survivor who 
spoke with an artirici,!) voice box. He arrivixl in Miami in October 2004 after fleeing an uprising in Haiti. He had 
a valid passport and visa, but when be requested political asylum, he was arrested and taken to the Krome 
detention center in Miami. His medications for high blood pressure and an inflamed prostate were taken away, 
and when he fell ill during a hearing, a Kn)me nurse acaised him of faking his illness. When he was finally 
ti'ansported, in leg chains, to the prison ward of a nearby ho.spital. it was already too late. He died the next day. 


lor} 



15 


My uncle’s brief and deadly stay in the United States immigration system was no holiday. Detention was no 
holiday for Rosa Isela Contreras-Dominguez, who was 35 years old and pregnant wheu she died iu immigration 
custody in Texas in 2007. She had a history of blood clots, and said her complaints regarding leg pains were 
ignored. It was no holiday for Mayra Soto, a California woman who was raped by an immigration officer. It was 
no holiday for Hin Lui Ng, a 34-year-old Chinese immigrant with a fractured spine who was dragged on the 
floor and refused the use of a wheelchair in an ICE detention center in Rhode Island. 

In October 2007 1 testified at another Congressional hearing on immigration detention conditions, where I told 
my uncle’s story. Also testifying was Francisco Castaneda, an immigrant from El Salvador. In 2006 he had been 
placed in a detention facility in San Diego, where he was refused treatment for a penile lesion and a lump in his 
groin. When he was eventually released from ICE custody, he had to have his cancerous penis amputated. A few 
months after giving his Congressional testimony, he died. 

In May 2010, the Supreme Court ruled in Hui v. Castaneda that public health officials in the detention system 
could not be held liable for failing to provide medical care to detainees like Mr. Castaneda and my imcle. This 
ruling further reduced the accountability for mistreatment. The new guidelines are a valuable gesture toward 
protecting detainees, but they are only guidelines, and they do not have the force of law behind them. 
Immigration facilities around the country can, and will, choose to interpret them any way they want, or ignore 
them altogether. 

The “Holiday on ICE” hearing may just be a political stunt, but the message behind it is dangerous; it suggests 
that the 30,000 vulnerable people in our jails and detention centers should have little right to proper medical 
care, that their very lives are luxuries, and that it is not our responsibility to protect them. 

Edwidge Danticat is the author, most recently, of the essay collection “Create Dangerously: The Immigrant Artist 
at Work.” 


2 of 2 


Mr. Conyers. Thank you, Mr. Chairman. 

So, here is the problem, and this is a sentence that comes out 
of the article, the op-ed that is going into the record by Ms. 
Danticat, whom I must confess I just talked to on the phone an 
hour ago to let her know that I had delivered a letter to our Chair- 
man, Lamar Smith, which I also ask unanimous consent to include 
in the record, please. 

Mr. Gallegly. Without objection. 

[The information referred to follows:] 



16 


F. JAMES SENSEMBRENNER, JF 
HOWARD COBLE, North Carolin 
ELTDN GALLEGLr, Calitorna 
SOB GOODLATTE, Virginia 
DANIEL E. LUNGREN. Caiifornia 
STEVE CHABOT.Ohio 
DARRELL E. iSSA. OaiiFsrnia 

J. RANDY FORBES, Virginia 

TRENT FRANKS, Arizona 
LOUIE GOHMERT, Texas 
JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 
TOM MARINO, PennsYlvania 
TREY GOWDY, South Caroiine 
DENNIS ROSS, Fiorlda 


JOHN CONYERS, JR-, Michigan 
RANKING MEMBER 


ONE HUNDRED TWELFTH CONGRESS 


dongress of the flnited States 

ilouse orillEpreBEntatinEB 

COMMITTEE ON TWE JUDICIARY 


HOWARD L. BERMAN, California 

JERROLDNADlfH, New York 

ROBERT C, "BOBBY" SCOTT, Virginia 

MELVIN L WATT, North Carolina 

ZOELOFGREN, California 

SHEILA JACKSON LEE, Texas 

MARINE WATERS. Californie 

STEVE COHEN, Tennessee 

HENRY C, "HANK" JOHNSON, JR„ Georgia 

PEDRO R, PIERLUISI, Puerto Rico 

MIKE aUlGLEY. Illinois 

TED DEUTCH, Florida 

LINDA T. SANCHEZ, Californie 

DEBBIE WASSERMAN SCHULTZ. Florida 


2138 Rayburn House Ofrce Building 


Washington, DC 20515-6216 
(202) 225-3951 

http:0wwwJioijse,goW;udiciary 

March 27, 2012 


The Honorable Lamar Smith 
Chairman 

Committee on the Judiciary 

2409 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Smith: 

It has come to my attention that tomorrow afternoon, the Subcommittee on Immigration Policy 
and Enforcement will be holding a hearing titled, “Holiday on ICE: The U.S. Department of Homeland 
Security’s New Immigration Detention Standards.” As you know, this Committee has performed 
oversi^t in the past on the issue of immigration detention. In the 11 0th Congress, we held two 
hearings on the topic and we received testimony from family members of people who needlessly died 
in our custody, doctors who told us where the system was falling short, and lawyers who had 
successfully sued the government over its mistreatment of detained immigrants. 

We disagree on a number of important issues regarding immigration policy, but 1 hope we 
agree that the manner in which we treat immigrants in our detention facilities is not a laughing matter. 

I urge you to reconsider the title of tomorrow’s hearing and to instead use a title that shows greater 
respect for the issue and for the people in our custody and care. 


Sincerely, 



Mr, Conyers, Thank you very much, I will read just a sentence 
from Ms, Danticat, “We are being too generous in deciding to give 
them safe water, an hour a day of recreation, and of offsite medical 
care if they are in danger of dying,” And I think that is what it 
comes down to. 

And I conclude with this, I have the highest respect for the direc- 
tor of U,S, Immigration and Customs Enforcement, John Morton, 
its director, I know of the good reputation of the assistant director, 
Kevin Landy, who is our lead off witness today. And so, I want us 
to balance what we say against what our Ranking Member, Zee 
Lofgren of California, has recited about the kind of conditions that 



17 


people are frequently forced to live in. And I hope that we can come 
to reasonable conclusions. 

And I thank the Chairman for his time, and I yield back what- 
ever is left. 

Mr. Gallegly. The time of the gentleman has expired. As you 
obviously are aware, the bells have rung for, I believe it is two 
votes, if I am not mistaken. And we will recess until we complete 
the two votes. And I would assume that we ought to be able to re- 
convene within about 25 minutes. 

[Whereupon, at 2 p.m., the Subcommittee recessed, to reconvene 
at 3:08 p.m., the same day.] 

Mr. King [Presiding]. I call this hearing back to order. 

We have a very distinguished panel of witnesses today. Each of 
the witnesses’ written statements will be entered into the record in 
its entirety. I ask that each witness summarize his or her testi- 
mony in five or minutes or less. To help you stay within the time, 
there is a timing light on your table. When the light switches from 
green to yellow, you will have 1 minute to conclude your testimony. 
When the light turns red, it signals that the witness’ 5 minutes 
have expired. 

Introduction of the witnesses. Mr. Kevin Landy is assistant direc- 
tor for the Office of Detention Policy and Planning of U.S. Immi- 
gration and Customs Enforcement at the U.S. Department of 
Homeland Security. The Office of Detention Policy and Planning 
leads ice’s efforts to overhaul the current immigration detention 
system. Prior to joining ICE, Mr. Landy served for 13 years on Sen- 
ator Joseph Lieberman’s staff on the Committee on Homeland Se- 
curity and on Government Affairs. He received his bachelor’s de- 
gree from Amherst College and his law degree from Yale Law 
School. 

And Ms. Jessica Vaughan. As the policy director at the Center 
for Immigration Studies, she has been with the center since 1991, 
where her area of expertise is administration and implementation 
of immigration policy. Prior to joining the center, Ms. Vaughan was 
a foreign service officer with the U.S. State Department, and she 
holds a master’s degree from Georgetown, and a bachelor’s degree 
from Washington College in Maryland. 

I would also welcome Mr. Chris Crane. He currently serves as 
the president of the National Immigration and Customs Enforce- 
ment Council 118, American Federation of Government Employees. 
He has worked as an immigration enforcement agent for U.S. Im- 
migration and Customs Enforcement — that is ICE — at the U.S. De- 
partment of Homeland Security since 2003. Prior to his service at 
ICE, Chris served for 11 years in the United States Marines. 

And then we have Ms. Michelle Brand. Ms. Brand is the director 
of the Detention and Asylum Program at the Women’s Refugee 
Commission, which focuses on the critical protection of needs of 
women and children asylum seekers in the United States. She has 
more than 18 years’ experience working on immigration and 
human rights issues. Ms. Brand holds a bachelor’s degree from the 
University of Michigan and a law degree from Georgetown Univer- 
sity. 

I thank all the witnesses for being here and for your testimony 
in advance, and then recognize Mr. Landy for 5 minutes. 



18 


TESTIMONY OF KEVIN LANDY, ASSISTANT DIRECTOR, OFFICE 

OF DETENTION POLICY AND PLANNING, U.S. IMMIGRATION 

AND CUSTOMS ENFORCEMENT 

Mr. Landy. Vice-Chairman King, Ranking Member Lofgren, on 
behalf of Secretary Napolitano and Director Morton, thank you for 
the opportunity to highlight the ongoing efforts of U.S. Immigration 
and Customs Enforcement to reform our Nation’s immigration de- 
tention system. 

The Nation’s immigration detention system expanded rapidly in 
the last 15 years, from an average daily population of less than 
7,500 detainees in 1995 to more than 33,000 in 2011. This growth 
has presented challenges for the agency, and since 2009, Director 
Morton has made reforming ICE’s detention system a top priority. 

We wanted to develop facilities more appropriate for the agency’s 
detained population, and to improve conditions at existing facili- 
ties. We wanted to use fewer facilities located closer to the location 
of apprehension, to reduce the number of people transferred away 
from their families, communities, and attorneys. 

We wanted to ensure that detainees received adequate medical 
and mental health care, and that detention facilities receive nec- 
essary Federal oversight. And we wanted to do this in a fiscally 
prudent way. 

And, in fact, the agency’s reforms have produced concrete 
changes, while also achieving greater operational efficiency. I am 
pleased to highlight some of these reforms today. 

Last month, ICE promulgated the 2011 performance-based na- 
tional detention standards. The standards cover a wide range of 
topics relevant to the management of detention facilities, including 
all necessary security safeguards. And in most respects, they are 
identical to the standards developed in 2008 by the prior Adminis- 
tration. 

In this new version, however, we have made important and tar- 
geted revisions to better address the needs of ICE’s unique de- 
tainee population. For example, the standards improve medical and 
mental health care services, reinforce protections against sexual 
abuse and assault, enhance opportunities to engage in religious 
practices, and in other ways establish new safeguards defining the 
appropriate treatment of detainees. 

It is important to note, however, that our new detention stand- 
ards are only one of several interrelated reform initiatives that ICE 
has undertaken. For instance, ICE has made substantial progress 
in improving medical care available to detainees. The ICE Health 
Service Corps has streamlined the system for authorizing care to 
ensure timely treatment for detainees who have serious medical 
needs. And ICE is also developing an electronic health records sys- 
tem. 

ICE has also deployed field medical coordinators at all field of- 
fices to provide for better coordination with detention facilities and 
to monitor serious medical cases across the country. 

In 2009, ICE created an Office of Detention Oversight to conduct 
targeted inspections of detention facilities. ICE has also located 
more than 40 new Federal monitors at large detention facilities to 
inspect and monitor conditions, replacing a more expensive con- 
tract for those services. 



19 


In July 2010, ICE launched an online detainee locater system, a 
public web-based tool that allows family members and attorneys to 
locate detained aliens in ICE custody. By providing information on- 
line, the tool frees up time for ICE employees to focus on carrying 
out other responsibilities. 

ICE has made great strides in reducing costly long distance 
transfers of detainees by increasing detention capacity where it is 
most needed. This makes it more likely that detainees will remain 
near their families and attorneys. It also reduces disruptions to on- 
going immigration proceedings that may lengthen an alien’s deten- 
tion. The ICE transfer directive, signed by Director Morton in Jan- 
uary of this year, ensures that decisions regarding the long dis- 
tance transfer of detainees will be made only after careful consider- 
ation of the individual circumstances of each detainee. The policy 
will further decrease the transfer of detainees who have local attor- 
neys, family members, or ongoing removal proceedings. 

As part of our continued effort to develop a better model for im- 
migration detention, ICE has opened the Karnes County Civil De- 
tention Center outside of San Antonio. The facility will house low 
risk detainees, many of them asylum seekers, in a less restrictive 
environment. The facility’s design permits greater freedom of move- 
ment, including easy access to outside recreation, and has other 
features consistent with our detention of foreign principles. Karnes 
also costs ICE far less than the agency’s average cost of detention. 
ICE plans to open additional new civil detention facilities in re- 
gions where they are most needed. 

Thank you again for the opportunity to testify today, and for 
your continued support of ICE and its law enforcement mission. I 
would be pleased to answer any questions at this time. 

[The prepared statement of Mr. Landy follows:] 



20 



U.S. Immigration 
and Customs 
Enforcement 


STATEMENT 

OF 

KEVIN LANDY 

ASSISTANT DIRECTOR 

OFFICE OF DETENTION POLICY AND PLANNING 
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 
U.S. DEPARTMENT OF HOMELAND SECURITY 

REGARDING A HEARING 

“HOLIDAY ON ICE: THE U.S. DEPARTMENT OF HOMELAND SECURITY’S NEW 
IMMIGRATION DETENTION STANDARDS” 

BEFORE THE 

U.S. HOUSE OF REPRESENTATIVES 
COMMITTEE ON THE JUDICIARY 
SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT 


Wcdnc.sday, March 28, 2012 
2141 Rayburn House Office Building 


21 


INTRODUCTION 

Chairman Gallegly, Ranking Member Lofgren, and distinguished Members of the 
Subcommittee, on behalf of Secretar}’ Napolitano and Director Morion, thank you for the opportunity 
to highlight the ongoing efforts of U.S. Immigration and Customs Enforcement (ICE) to reform our 
nation's immigration detention system. 

REFORMING OUR NATION’S IMMIGRATION DETENTION SYSTEM 

ICE is the principal investigative arm of the U.S. Department of Homeland Security (DHS) and 
the second largest investigative agency in the Federal Government. Created in 2003. through a merger 
of the U.S. Customs Service and the U.S. Immigration and Naturalization Service, ICE now has more 
than 20,000 employees in all 50 Stales and 47 foreign countries. 

ICE identifies, apprehends, and removes criminal and other removable aliens from the United 
States and dismantles terrorist and criminal organizations that exploit our borders by: (1) preventing 
terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and 
administering our immigration laws. 

At ICE. Enforcement and Removal Operations (ERO) is the principal component for enforcing 
the nation's immigration laws in a fair and effective manner. ERO enforces the Nation’s immigration 
laws by identifying and apprehending removable aliens, detaining these individuals when necessar)-, 
and removing them from the United States. To protect public safety and national security', ICE 
prioritizes the removal of criminal aliens, repeal immigration law violators, recent illegal entrants, and 
immigration fugitives. 

The nation’s immigration detention system has changed significantly in the last 15 years - 
growing from iui average daily population of less than 7,500 detainees in Fiscal Yeai' 1 995 to over 


2 



33,000 in KY 201 1 . This growth has presented challenges for ICE, both in terms of ensuring the safety 
of the individuals in our custody and also in protecting local communities from those individuals who 
may present risks. 

In August 2009, Director John Morton announced that ICE would begin reforming ICE's 
detention system. ICE made this effort a top priority for our agency. We envisioned an improved 
detention system that housed criminal and non-criminal <diens in different environments, in 
circumstances commensurate to their level of risk. We wanted to use fewer facilities, located closer to 
the location of apprehension, to reduce the number of people transferred away from their families, 
communities, and attorneys. We wanted to develop facilities more appropriate for the agency's 
detained population and to improve conditions at facilities. We wanted to be fiscally prudent by 
improving efficiency. Therefore, we have adopted the following principles to guide our reforms: 

• ICE detains aliens in settings commensurate with the risk of flight and danger they present. 

• ICE ensures detainees receive adequate medical and mental health care. 

• ICE ensures that detention facilities receive necessary' federal oversight. 

• ICE prioritizes efficiency throughout the removal process in order to reduce detention costs, 
minimize the length of stays and ensure fair proceedings. 

• ICE is fiscally prudent when carrying out detention reform. 

The reforms have produced concrete changes. ICE has improved medical care, custodial 
conditions, oversight of the immigration detention system, and substantially reduced transfers. Our 
reforms have addressed many of the concerns raised about the immigration detention system, while 
also allowing ICK to operate essential detention facilities to complete its mission and achieve greater 
operational efficiency. 



23 


HIGHLIGH I S OF ACCOMPLISHMENTS 


Establishment of an Office Dedicated to Reform and Outreach on Detention Issues 

In August 2009, ICE established the Office of Detention Policy and Planning (ODPP) to help 
coordinate the agency's overall detention reform effort. ODPP develops these initiatives in close 
collaboration with HRO, other ICE components, and ICE field offices, ODPP meets on a regular basis 
with two advisory groups of local and national organizations interested in. and working towards, 
detention reform. These groups provide feedback and input to ICE, focusing on general policies and 
practices as well as detainee health care. In the course of our work wc have seen a genuine 
commitment to detention reform at every level of the organization. 

Launch of Online Detainee Locator System (OOLS) 

In July 2010, ICE launched the Online Detainee Locator System (ODES) 
('http://wwvv.ice.gov/loeator') . a public, web-based tool designed to assist family members and attorneys 
in locating detained aliens in ICE custody. The ODLS is available in multiple languages, including 
English, Spanish, Portuguese, French, Arabic, Vietnamese. Chinese, Somali and Russian. Once an 
individual is located, the system provides users information about w'here the person is being held and 
additional information such as the address, phone number and visiting hours for the facility. More than 
1 00,000 people use the ODLS each month. This allows family members and attorneys to access 
information on-line, and enables ICE employees to focus on canning out the core mission of the 
agency. 

Enhancement of Federal Detention Oversight and Accountability^ 

In 2009, ICE created the Office of Detention Oversight (ODO) to conduct targeted inspections 
at detention facilities, where complaints or deficiencies have been reported. Ilou.sed within ICE's 

4 



24 


Office of Professional Responsibility (OPR), ODO also conducts thorough investigations of all 
detainee deaths that occur while individuals are in ICE custody. 

ICE also established the On-Site Detention Compliance Oversight Program within the 
Detention Management Division (DMD) of ERO. This program comprises a corps of more than 40 
new federal detention site monitors who are based at large detention facilities to inspect and monitor 
their compliance with ICE detention standards, respond to and report any problems found, and work 
with local ICE field offices to address concerns. As of January 2012, the program covers 52 facilities 
representing approximately 84 percent of ICE 'S average daily population of detainees. ICE ensures 
compliance with standards at the remaining facilities through annual inspections and weekly visits by 
ICE staff. ICE is in the process of adding 1 8 more staffi which will reach approximately 90% of the 
detained population. The creation of these federal positions allow^ed ICE to end costly facility 
compliance monitoring visits and compliance reviews contracts, saving ICE more than $14 million in 
just one year. In addition, replacement of contractors with detention site monitors allowed for more 
immediate oversight, reporting and corrective action. 

The on-site monitors provide ICE headquarters with a weekly report that documents problems 
identified within the facilities. In many cases, problems are remedied immediately. In other instances, 
DMD will implement a remedial plan. DMD also ensures corrective actions are taken to address 
deficiencies identified by: ODO, contract inspectors that conduct annual evaluations of facilities; and 
by other oversight entities such as the Dl IS Office of Civil Rights and Civil Liberties and the DHS 
Office of the Inspector General. Having on-site monitors also strengthens ICE's ability to ensure that 
plans to correct deficiencies are properly implemented and understood by facility operators. 

In addition, ICE has created a Detention Monitoring Council, which is chaired by the Executive 
Associate Director of ERO, and whose membership includes the leadership of OPR, the ICE Office of 
the Principal Legal Advisor, the ICE Office of Acquisition Management, and ODPP. The Council 
meets regularly to review issues found by the agency’s oversight entities iuid discuss policy 


5 



25 


implications, including immediately after any detainee death or other critical incident. In cases where 
more serious problems have been identified. ICE leadership can determine whether ICE will 
discontinue using particular facilities or impose monetary sanctions. A key part of ICE detention 
reform efforts includes ensuring that the agency takes appropriate action with contractors when 
services do not meet contract requirements. 

Finally, ICE has worked to centralize detention facility contracts under ICE headquarters 
supervision to ensure more uniform contracting processes. ICE has developed a new 
Intcrgovermncntal Service Agreement template to standardize detention services contracts and to 
improve compliance with contract terms by clearly identity'ing sanctions associated with non- 
compliance. This also allows for a nationwide analysis of which contracts are in the agency's financial 
interest and those that are unfavorable from both an operational and financial perspective. 

Reduction in Transfers 

ICK has made great stiides in reducing long distance transfers of detainees by increasing 
detention capacity where it is most needed. ICE used forecasting models that aligned detention 
capacity with arrest activity to determine the locations of new facilities. This makes it more likely that 
detainees will remain close to their families and attorneys, ft also helps reduce disruptions to ongoing 
immigration proceedings that may lengthen an alien’s detention. ICE has also determined that 
eliminating pre-final order transfers can also reduce an alien’s length of stay in detention. 

Reductions in transfers from one area of responsibility (ADR) to another are most evident in 
Los Angeles and the northeast. As of January- 2012, transters of detainees prior to their final orders of 
removal from the Los Angeles AOR had virtually ceased, and transfers from the New York City AOR 
had decreased by more than 80 percent from TY 2010. 


6 



26 


t ransfer Directive 

'I'he ICF. Transfer Directive, signed by Director Morton on January 4, 2012. ensures that 
decisions regarding the long-distance transfer of detainees will be made only after careful 
consideration of the individual circumstances of each detainee. The Transfer Directive builds on the 
successful reduction of long-distance transfers, by ensuring that transfers are made only when 
necessary and prioritized appropriately. Under the Directive, unless a transfer is deemed necessary by 
a Field Office Director or his or her designee. ICE will not transfer a detainee to another AOR if: 

• the detainee has immediate family within the AOR; 

• the detainee has an attorney of record within the AOR; 

• the detainee has pending or on-going removal proceedings; or 

• the detainee has been granted bond or scheduled for a bond hearing. 

The I'ransfer Directive also establishes procedures for filing a notice to appear (NTA) in 
immigration court. As a general matter, NTAs will be submitted to the relevant immigration court 
within five workdays of the NTA being served on the alien, or upoi^ the alien entering ICE custody, 
whichever is later. This filing deadline will ensure that the venue of a detainee’s proceedings is 
established quickly to expedite his or her case in the area where the alien was initially apprehended, if 
possible. 

Development of Risk Cla.ssification A.ssessment 

ICE has designed a new risk classification assessment tool (RCA) that will improve 
transparency and uniformity in detention custody and classification decisions while promoting the 
priorili/alion of detention resources. The RCA will be a component of the automated custody 
management system ICE officers use cvery^ time an individual is apprehended, ft contains objective 


7 



27 


criteria related to public safety, flight risk and other relevant factors, and a general scoring system to 
guide the decision-making of ICE officers and their supervisors regarding; 

• whether an alien should be detained or released: 

• if released, the alien’s appropriate level of community supervision; and 

• if detained, the alien’s appropriate custody classification level. 

The RCA incorporates factors that reflect the agency’s civil enforcement priorities and criteria 
established in the prosecutorial discretion memoranda issued by ICE Director Morton. The RCA, for 
instance, helps ensure criminal aliens are prioritized for detention. It will also permit both supervisors 
in the field and ICE headquarters staff to monitor the entire decision making process in individual 
cases and on a system- wide basis. The agency continues to test a pilot of the RCA in paper form and 
plans to begin deployment of the RCA in electronic form in the summer of 2012. 

Development of New Civil Detention Facilities 

ICE is opening new civil detention facilities that, for the first time, incorporate civil detention 
principle.s and the needs and characteristics of ICE’s diverse detainee population. Earlier this month, 
ICE opened the Karnes County Civil Detention Center (Karnes), outside of San Antonio. Karnes is the 
first facility designed and built from the ground up vvitli ICE’s civil detention reform standards in 
mind. The facility' will house a minimum security population, such as asylum-seekers, those without 
criminal convictions, and other lovv-risk individuals. It was built uniquely to offer the least restrictive 
environment permissible to manage persons in administrative custody. Similar facilities, also 
restricted to minimum security detainees, have been opened in the Newark and Eos Angeles AORs. 
Among other things, these new facilities offer: 

• greater freedom of movement; 


contact visitation; and 



28 


• greater access to legal services. 

ICK plans to continue opening similar new, dedicated civil facilities in regions where they are 
most needed, including in the Chicago and Miami AORs. ICE has consolidated the number of 
facilities from 340 to approximately 250. and discontinued the use of three high-cost ICE-owned 
Service Processing Centers in Aguadilla, Puerto Rico, Varick Street, New York City, and San Pedro. 
California. The closures of the Varick Street and Aguadilla facilities and the transformation of the 1 . 
Don I lutto Residential Center from a family residential facility into a female-only detention facility 
have saved and are projected to save ICK many millions of dollars. ICF/s plans to further consolidate 
the detained population in new or improved facilities. These lacilities are expected to be budget 
neutral, or in some cases, to result in operational efficiencies and cost savings, for instance, because the 
new facilities will be located closer to ICE Field Offices. 

Development of Revised Detention Standards 

ICE has recently promulgated the 201 1 Performance-Based National Detention Standards. In 
developing the revised standards, TCE incorporated the input of many agency employees and 
stakeholders, including the perspective of Congress, nongovernmental organizations and ICE field 
offices. The ICE detention standards have been revised to better address the needs of ICE’s unique 
detainee population. The standards: 

• improve medical and mental health care services; 

• reinforce protections against sexual abuse and assault; 

• maximize access to counsel and legal resources; 

• expand acces.s to religious services and opportunities; 

• improve communication assistance sendees for detainees with limited English proficiency or 
disabilities; and 


9 



29 


• eiiliaiice procedures for reviewing and responding to detainee grievances. 

ICE will implement these standards throughout 2012 on a rolling basis. Contract modifications 
are expected to be completed by April 1 5, 2012 at the six federally owned Service Processing Centers, 
to be followed within three months by implementation at all remaining dedicated detention facilities. 
ICE will also require adoption of the new standards in other facilities housing ICE detainees, such as 
county jails, beginning with those facilities that have the largest population of ICE detainees. 

Medical Care 

ICE has recently reformed the way medical services are authorized to improve timely access to 
treatment for detainees who have serious medical needs. In addition, the ICE Health Service Corps 
(II ISC) has designated regional Clinical Directors to provide medical oversight and Field Medical 
Coordinators have been assigned to field offices in each of the ICE AORs. These individuals will 
provide enhanced communication and reporting and expeditious and ongoing case management to 
monitor and track serious medical cases across the country. 

IHSC has also begun a program of site visits to facilities housing ICE detainees to establish a 
stronger relationship with the health care providers there. These visits are being conducted by the 
IIISC Field Medical Coordinator responsible for that particular AOR. There are several activities 
during these site visits, which include: 

• meeting the health care providers and introducing the IHSC Field Medical Coordinator 
program to establish stronger communications with the facility; 

• surveying the facility’s and the surrounding community’s health care resources to learn more 
about the health systems capabilities available to the facility; 

• assessing the facility's chronic health ciu^ load and needs; and 

• initiating a quality of care audit program based on detention standards requirements. 


10 



30 


Parole Policy 

In January 2010. DHS revised ICE policy for granting parole to asylum seekers determined by 
DHS to have a credible fear of persecution. Prior policy required asylum seekers to initiate a request 
for parole in writing. As a result, asylum seekers who might have qualified for parole remained in 
detention during often lengthy litigation, at great expense to the federal government. The new policy 
mandates that all arriving aliens who arc found by DHS to have a credible fear of persecution 
automatically be considered for parole. Such asylum seekers can be eligible for parole if they establish 
their identities, pose neither a flight risk nor a danger to the community, and have no additional factors 
weighing against their release. 

CONCLUSION 

In closing, I would like to thank ICE employees, the Congress, and our stakeholders who 
continue to provide significant collaboration and support in this important mission ■ reforming the 
immigration detention system. 

Thank you again for the opportunity to testify today and for your continued support of ICE and 
its law enforcement mission. 

I would be pleased to answer any questions at this time. 


II 



31 


Mr. King. Thank you, Mr. Landy. 

And now recognize Ms. Vaughan for her testimony. 

TESTIMONY OF JESSICA M. VAUGHAN, POLICY DIRECTOR, 
CENTER FOR IMMIGRATION STUDIES 

Ms. Vaughan. Thank you for the opportunity to he here today. 

Of course no one wants to see people mistreated in detention, but 
this initiative goes too far and is a waste of taxpayer dollars that 
is motivated not by a genuine need for reform, but as part of a 
larger strategy to trivialize immigration law enforcement, and min- 
imize the consequences of illegal immigration, which imposes enor- 
mous fiscal, economic, national security, and public safety burdens 
on American communities. 

It is just wrong to ask Americans to foot the bill for the Obama 
Administration programs that seek to help illegal aliens game the 
system. For example, as part of this detention reform initiative, 
DHS has set up hotlines and special advocates for illegal aliens to 
complain about their treatment. As in any large detention system, 
abuses occur and are dealt with, but at this point, the people who 
really need a hotline and a special advocate are the ones who have 
been the victims of the illegal acts committed by illegal aliens. 

While critics of immigration law enforcement like to call them 
concentration camps, in reality immigration detention centers have 
always been softer than other detention centers. With their turf 
soccer fields, juice bars, satellite television, and polo shirt clad resi- 
dent advisors, the descriptions of the brand new facility in Karnes 
City, Texas sound like more a college campus, not like a temporary 
holding place for people who have violated U.S. laws. 

Now, I am not here to suggest that DHS start housing detainees 
in tents in the desert, but the new Karnes facility cost $32 million 
to build. That is more than twice as expensive per bed as another 
new facility that was built not too long ago in Farmville, Virginia. 
It is reasonable to ask why the new facility, built according to the 
new standards, cost so much more, and how this compares to other 
options, such as housing detainees at local correction centers. 

How can DHS justify these facilities and services considering 
that the vast majority of detainees are there only for a short period 
of time? The average length of stay for a so-called non-criminal of 
Mexico or Central America is 10 to 21 days, just long enough for 
travel documents to be issued and flights to be arranged. And a 
large share of these ICE detainees, Mexicans who are apprehended 
by the Border Patrol, stay only 12 hours. 

ICE turns over groups of 100 of these illegal aliens twice a day. 
The only reason that they are in detention at all is for the purpose 
of padding ICE’s year end removal statistics. 

For others, mainly in the interior, the centers are really just a 
brief way station in the Obama Administration’s massive catch and 
release program. Under current policies, also known as prosecu- 
torial discretion, if they are not a mandatory detainee and have not 
yet been convicted of a crime, they are whisked back onto the 
street, often with a work permit. 

Many of the small number who remain for long periods are there 
because they are refusing the option of quick return and choosing 
to challenge their deportation or seek relief. Unfortunately, too 



32 


often they are given false hope by advocacy groups who, under the 
new standards, get increased access to detainees. The humane 
thing to do is to process them more expeditiously so that they can 
get back home. 

An increasing number who choose to stay in detention in the 
hopes of getting permission to stay are illegal arrivals who are tak- 
ing advantage of the Administration’s new lenient policies that re- 
ward people who express fear of return to their home country. They 
are usually assisted in this claim by NGO advocates who put on 
regular briefings in detention centers as called for in the new 
standards. 

After the application process, they are released with a work per- 
mit and notice to appear at some future date. These applications 
have increased 500 percent since the new policies were adopted. 

Advocates for illegal aliens are quick to point out that a large 
share of the individuals in detention are classified as non-crimi- 
nals. This is not because they are harmless; it is usually because 
local authorities often will drop charges against illegal aliens in the 
expectation that ICE will take care of their problem by detaining 
and removing them. So, this population of so-called non-criminals 
in reality includes any number of unsavory and dangerous char- 
acters. 

Convicted or not, ICE still has the responsibility to remove them. 
Putting them in a center with standards that are too soft may put 
detention officers, resident advisors, and other detainees at risk, 
and releasing them back into our communities puts everyone at 
risk. 

The majority of aliens who are not detained while in proceedings 
will fail to appear for their hearings or will ignore orders to depart. 
And the number of absconders is now more than 700,000, which is 
a 28 percent increase over 2008. A huge number of them abscond 
from local criminal proceedings, too. 

One recent case illustrates what happens when ICE looks for 
ways to release rather than detain people who have been arrested. 
Last September, they released a man in Chicago who was charged 
with 42 counts of child molestation, including incest and rape. He 
was supposedly being monitored electronically, but like many thou- 
sands before him, he has not been seen since. There are thousands 
of other cases that we can point to that are similar to this, but for 
now since my time has expired, I will await your questions. 

[The prepared statement of Ms. Vaughan follows:] 



33 


1 


Holiday on ICE: 

The US. Department of Homeland Sccuii^’sNcw Immigration Detention Standards 

US. House of Representatives Judiciarv Committee 
Subeommittee on Immigration Policy and Enforeement 
Washington, DC 

March 28, 2012 

Statement of Jessica M. Vaughan 
Director of Policy Studies 
Center for Immigration Studies 

Chairman Gallegly, Ranking Member Lofgren, and other committee members, thank \'ou for the 
opportunity to be here today to diseuss ICE's new Performanee Based Detention Standards. Wliile no 
reasonable person would be against the humane treatment of detainees, this Obama Administration 
initiative goes too far and puts tire interests of removable aliens ahead of the national interest. The 
initiative undercuts immigration laws passed by Congress by eliminating reasonable deterrents to illegal 
entry'. It is a waste of taxpayer dollars that is motivated not by a genuine need for reform, but as part of a 
larger strategy to trivialize immigration law enforcement and minimize the consequences of illegal 
immigration, which imposes enormous fiscal, economic, national security and public safety burdens on 
American communities. 

Instead of softening immigration detention standards and helping illegal aliens game the system, 
the Department of Homeland Security should be expanding ICE detention capacity in order to keep more 
law'brealvcrs off tlic street until they arc removed, and to deter others from remaining. A better way to 
help immigration detainees would be to reduce the amount of time they spend in detention by making 
more use of the tools Congress has provided to process removable aliens more expeditiously. DHS 
should not be helping illegal aliens prolong their stay; they should be devoting more effort to helping the 
people who were victims of their crimes and illegal actions. 

New Standards Pamper Immigration Detainees. Descriptions of the brand-new ICE detention 
facility' in Karnes City', Texas evoke images of college campuses w'here parents pay room and board of 
$10,000 or more a year, not facilities that temporarily hold people who have violated U.S. laws. ''Behind 
tall walls, the grassy compound offers inmates a salad bar, a library with Internet access, cable TV, and 
indoor gym vvith basketball courts, and soccer fields. Instead of guards, unarmed 'resident advisors' 
patrol the grounds in polo shirts and khakis,” reported the Los Angeles Times} 

Reads another: 

"Airport-style chairs line the waiting area instead of cold, hard prison benches. Small, locking 
rooms with large glass windows line the walls. Glass appears like a motif, as do framed prints of 
paintings, like those by Georgia O’Keefe. The spacious dining hall, its linoleum floors marked 
by' colorful pimvheels, summon memories of wood parquet, or the shiny' halls of suburban mega- 
schools. The theme shifts to summer camp widi two large interior courtyards housing volleyball 
cuid basketball courts, along with an AstroTurf soccer field. The quad dorm areas are named after 


Brian Bennett, “New prison for detained immigrants features salad bar. unarmed guards.” Los Angeles Times, 
March 18, 2012. 



34 


2 


trees - Cedar Hall, Oak Hall, merging tiie suirmier>- and more autumnal thoughts of school. A 

private college, perhaps.”" 

Even before these standards were issued, ICE detention centers were already softer than those at 
other federal and local facilities. "ICE is a country' club compared to anything else,” one career federal 
detention manager told me, with centers equipped with die most modem recreational amenities. One of 
ice's existing larger centers has a huge artificial turf soccer field; volleyball and basketball courts; new 
kitchens and dining areas - complete with juice and soda bars and unlimited refills; flat screen TVs in the 
housing units, witli personal headphones so each detednee can watch their choice of English or Spmiish 
satellite TV in peace; movie nights; potted flowers; and a vegetable and herb garden. 

In addition, the standards dictate very generous and flexible visitation policies for detainees' 
friends and family (including contact visits) and freedom of movement within tlic facility. Anotlicr 
explicit goal is to improve detainees’ access to lawyers and other advocates who seek to help them contest 
their charges and fight to remain here longer. 

New Facilities Costly. Naturally, none of this comes cheaply'. The 608-bed Karnes facility cost 
the private operator, GEO Group, $32 million to build. This vvorks out to $52,632 per bed. ICE is 
expected to pay GEO Group about $15 million a year to run the center. 

A 1.040-bcd facility was built just a couple of years ago in Faimville, Virginia by a group of 
private investors for $21 million, or $20,192 per bed, which is less than half the cost per bed of the 
Karnes center. 

ICE must balance its obligation to house immigration detainees humanely with its responsibility 
to perfonn its mission cfFiciently and cost-cffcctivcly. Before giving DHS a blank check for detention 
facility' projects, Congress should ask the agency leaders to explain the fiscal impact of the new standards, 
why the new center is so much more expensive tlian similar recent projects, ajid how this center compares 
in cost to alternatives such as IGSA agreements and leasing space at local corrections centers. 

Most ICE Detainees are Short-timers. It is important to evaluate tliis initiative in tlie context of 
the overall ICE/ERO caseload. The vast majority of tliose eligible for detention in one of these centers 
represent less than half of ICE 's removal caseload, and typically are not held in ICE detention for long 
periods of time. According to ICE field office supervisors, tlic average Icngtli of stay in detention for a 
^rion-criminal” citizen of Mexico or Central America is 10 to 21 days. They are held just long enough for 
travel documents to be issued and fliglits to be arranged. Tlicse cases malve up 87% of tlic ICE “non- 
criminal” removal cases. 

A large share of “non-criminal” detainees, namely Mexicans apprehended near tlic border, stay 
less than one day in detention. These are individuals w-ho are apprehended by the Border Patrol and 
bused north to an ICE detention center for quick processing and return to Mexico. Tlieir stay in detention 
is about 12 hours. ICE detention centers in the southwest border areas handle groups of 100 of these 
illegal entrants tw-ice a day. They are processed as Voluntary' Returns, w-hich means they face no 
penalties or repercussions, are not barred from fiitiire legal admission, and emmot be prosecuted as a 
repeat violator if they tiy to enter illegally again. Tlic only reason this group is in detention at all is for 
the purpose of padding ICE’s year-end removal statistics. These quick turn -backs numbered about 75,000 
last year, or nearly 20 percent of ICE's total reported removals. 


^ Scott Andrews. “What design elements at Karnes facility tell us about the state of immigrant detention.” Son 
Atnonio Cun-ent, March 21, 2012. 



35 


Return to Catch and Release. For a large number of detainees, these fancy civil detention 
centers are really just a brief way station in a massive catch and release program. Far too many illegal 
aliens who are apprehended and whom ICE euphemistically refers to as “non-criminals'" (because in most 
cases tlicy were discovered as a result of being booked into jail for local non-immigration crimes) arc 
quickly whisked back on to the street, usually with a work permit. 

Tliis is because under current Obama administration policies, ICE removal officers and trial 
attorneys have been instaicted to focus their efforts nearly exclusively on those individuals who have 
been convicted of crimes, while enabling those who are identified but not yet convicted remain at large. 
Some arc released on bonds, some on electronic monitoring or other forms of supervision, and some on 
their own recognizance. In effect, ICE is largely conditioning the exercise of its authority to the 
disposition of these cases at tlic local level. According to ICE guidelines, which have been outlined in a 
w cll-publicizcd scries of announcements and policy memos, unless an illegal alien is a repeat offender, 
they should be allowed to remain at large, no mattertlie seriousness of their charges, and regardless of the 
likelihood that they will actually appear in court to face either their criminal or their immigration charges. 
Officers are instmeted to be especially lenient if the illegal alien offender has been here long enough to 
acquire a U.S. citizen spouse or child, or otlierties to the community. 

With a few exceptions, the small number who remain in ICE detention facilities for long periods 
are there because they continue to challenge their deportation. And they often do so because they are 
given false hope by open-borders advocacy groups intent on using such people as pawns in a political 
effort to hamper enforcement of American immigration laws. The humane thing to do would be to make 
clear to these illegal aliens tliat immigration to the United States is a false dream for them and help tlicm 
return home and get on with their lives. Instead, they languish in detention - a needed detention, given the 
virtual certaint)- that they would ignore a negative decision on their cases if set free- but languish 
nonetheless. 

hi addition, according to ICE managers, an increasing number of individuals are taking advantage 
of the administration’s new lenient policies on asylum seekers that went into effect in January', 2010. 
Illegal aliens apprehended by immigration officers, whether at the border or at tlie port of entry', who find 
themselves in detention are offered the opportunity to express their fear of return to tlieir home country. 
According to ICE detention center supervisors, often tliis fear is articulated shortly after tlic alien lias 
attended the biweekly' '‘know your riglits” presentations that have recently become a fixture in ICE 
detention centers - and that arc a key component of the new detention standards we arc discussing today. 
The most commonly expressed fears are of domestic violence or gang or daig cartels. According to ICE 
statistics, the asylum officers who evaluate these eases find the fear to meet tlic new standards of 
“credible” in about 80 percent of the cases. Aliens then receive a Notice to Appear before an immigration 
judge, which makes them eligible for release from detention, even if they have been deported before. 

Tlicy arc awarded parole status, which makes them eligible for a work permit. This process, from claim 
of fear to release on parole can be completed in about 30 days. It is no wonder that the number of 
“credible fear” applications went up nearly 500 percent from 2009 to 2010. Tlie number of grants of 
parole in these cases went up from 7 1 percent in 2009 to 80 percent in 2011. 

“Non-Criminals” Not Necessarily Harmless. Adv'ocates for illegal aliens are quick to point out 
that, despite the Obama administration's claimed focus on the removal of aliens who arc a threat to public 
safety, a large share of tlie individuals in immigration detention are classified as “non -criminals.” The 
reality is tliat a large share of the so-called “non-criminals” selected for removal processing have in fact 
been inv'olved in criminal activity, sometimes violent, and their placement in these new “soft” detention 
centers could place detention officers, resident advisors, and other detainees at risk. The decisions to 
release of many of tlicsc individuals, radicr Ilian remove dicm, can possibly put every one at risk. 



36 


4 


The detained aliens who are labeled “criminals” are those who have been convicted of a crime. 
Tlic “non-criminal” catcgor\ includes a large number of unsavory characters who may or may not have 
been proseeiited for their activities, including alien smugglers, gang members, drug dealers, drug users, 
drug mules, sexual predators, identity thieves, petty- eriniinals, drunlt drivers, prostitutes and pimps. 

Some may have a criminal history- in their home country- that is unknown to agencies here. Some are 
serial traffic offenders who have been a menace on tiie roadways. Those local law enforcement agencies 
that arc able to keep track report that anywhere between 10 and 50 percent of the illegal aliens who arc 
booked into their jails were arrested for daink driving, often multiple times. 

Tlicrc can be a variety of reasons why flicsc non-citizen miscreants lack a criminal conviction. 
Many drunk driving tuid traffic offenses are tlirowm out by local courts or end up in continumice for 
technical reasons. Some criminals get off because their victims arc afraid to testify; this is especially true 
in domestic violence or gang cases, But the most common reason some alien offenders arc not convicted 
of crimes is because local prosecutors or investigators are prone to drop charges when they- become aware 
that ICE has issued a detainer and the offender is potentially removable. It is common for these agencies 
to use ICE and the opportunity of immigration charges as a substitute for local charges as a pressure valve 
to relieve their crowded local dockets, sav-ing every-one the time and effort required to follow through 
W'itli the prosecution of w hat tliey may sec as relatively minor offenders who should not be present in the 
community an\v\-ay, 

Convicted or not, ICE still has die responsibility to remove individuals who are here in violation 
of our laws; especially those who have been troublesome. Nothing in immigration law provides for 
violators to avoid enforcement and be allowed to stay here simply because they have not been convicted 
of another crime. 

One case out of Chicago illustrates the absurd and irresponsible lengths to which ICE now goes to 
avoid holding aliens in custody and to rationalize the use of “prosecutorial discretion,” Amado Espinoza- 
Ramirez was anested in August. 2011 by Chicago police and charged with multiple sex offenses, 
including incestuous child rape. He was ultimately charged with 42 counts of child molestation. Two 
days after Espinoza was arrested, ICE properly issued a detainer, so when a “friend” appeared with 
$10,000 to bail him out, ICE was able to keep him in custody. But the next day, ICE turned around and 
let him go. According to agency statements, Espinoza was released with an electronic monitoring 
bracelet because he had “no prior criminal convictions, no prior immigration v-iolations, and is tlie parent 
of a U.S. citizen child” (no mention of whether that child was also a victim). Not surprisingly, Espinoza 
has not appeared for any- of his hearings. ICE has issued a statement saying that because Espinoza did not 
appear for his immigration hearing in November, he is now a priority for enforcement and w ill be held in 
custody if anyone ever finds him.’ . 

Wliilc tlic circumstances of the Espinoza case may be unusually serious, it is not an isolated case. 
In recent years, ICE has made increasing use of electronic monitoring, supen- ision, and bonds as 
alternatives to detention. The results are not encouraging. New-spapers periodically report on offenders 
who had been in ICE custody recently and were released only to rc -offend. According to data I have 
review-ed from the Secure Communities program, about nine percent of the aliens identified through this 
screening, which occurs at the time of an arrest, are found to be already- in remov-al proceedings - 
meaning that tlicy w ere caught once, released to await a hearing, and got arrested again. As of one year 
ago, this was more than 40,000 aliens across the country- who had re-offended w-hile waiting to be ordered 
removed. Tliat's a lot of umiccessaiy victims. Ofticr reports arc begimiing to surface suggesting that a 
large share of individuals released on ICE bonds also have absconded. 


^ Michael Volpe, 'ICE admits releasing alleged child rapist,” The Daily Caller. March 21, 2012. 
hiT p : / /dailvcaJlcr.Cvoni/20 12/03 /21 ''ice- adniits-releasiiig-alleged-child-rapisr/ . 



37 


5 


The Alternative to Detention Is Fugitives and Absconders. It is worth re-stating that the main 
point of immigration detention is not to keep criminal aliens off the street (even though that is a real 
benefit), but to enable the entbreement of immigration laws. The only way to ensure that illegal aliens 
actually appear before an immigration eourt (for the sub-set of removable aliens who are actually entitled 
to that fonn of due process) is to physieally compel fliem to do so through detention. While it ean be 
worth experimenting with various alternatives to detention, in the real world their likelihood of success is 
limited. Pilot programs to assess the viability' of alternatives to detention often either include people who 
would not have been detained anyway (i.e., cream-skimming or cherry-picking those most likely to yield 
the "right" result) or ftidge the statistics to make the results appear more favorable, or both. For instance, 
a Houston Chronicle investigation Uvo years ago found that nearly one in five suspected illegal 
immigrants who went through an experimental ICE intensive monitoring program absconded while under 
supervision. 

Experience and studies have shown that illegal aliens who are not detained, especially those who 
arc facing criminal charges, often will flee from proceedings in order to avoid prosecution and removal. 
One recent study published by my organization found that nearly 60 percent of aliens who are not 
detained while in proceedings will fail to appear for their hearings or will ignore orders to depart."^ Some 
of these individuals, such as illegal alien Saul Chavez, a repeat drunk driv ing felon who killed a 
pedestrian named Dennis McCann in Chicago last year\ also flee from local criminal proceedings, 
leaving in tlieir wake victims and families of victims who are unable to obtain the closure they deserve 
through the Justice system. 

Absconders are a huge problem in our immigration system. In 2010, there were 715,000 aliens 
present here who had failed to appear in immigration court or who had disobeyed orders to depart, This is 
a 28 percent increase over 2008. Today there are more than one million unexecuted orders of removal, 
and the number has increased more than 84 percent since 2002. ^ It is no wonder that the size of the 
illegal population has stopped shrinking in the last two years. ^ 

Despite this record, the Obama administration is try ing to move away from using detention 
centers, even the softer ones we have been discussing, in favor of alternatives such as electronic 
monitoring and other forms of supervision. The administration has asked Congress in its recent budget 
request tor the flexibility to shift funds from detention beds, which are specified by Congress and which 
must be used by DHS, to these less effective alternatives. 

Given this abysmal record of enforcement. Congress would surely come to regret awarding such 
flexibility' to DHS under this administration. Instead. Congress should preserv'e the requirement that all 
the funded space be used tor that purpose, and increase the number of ftinded detention beds to a level 
that enables ICE to meet its needs and the expectation of lawmakers and the public. DHS should be 
expected to use tlic most cost-cffcctivc options possible, including IGSA agreements with local sheriffs 


Mark II. Metcalf, Built to Fail: Deception and Disorder in America’s Immigration Courts, Center for Immigration 
Studies, May 201 1, i ULr' ://wv^ vv.cis.o rg /imTn igralion-CourLs . 

■ .Icssiea Vaughan, ""Cook County Pressured to Reverse SaneluaiV' Poliey,” Center for Immigration Studies Blog, 
.lanuary 6, 2012, bllp:/,^cis.or^/vauuhan/eook-co untv-pressured-Lo-r everse-saT ietu arv -policy and '"The Altemalive to 
Immigration Detention: Fugitives,” October 18, 2011, hUp: / /cis.ori 4 /vaugh an/altcmaio s.-ii'-iieAn_tK)n-j'ugitiyes. 

^ Metcalf, op.cit. 

' Steven Camai'ota. ""New DIIS Estimates Confirm That the Illegal Immi grant Population Stopped Declining Under 
Obama.” Center for Immigration Studies, March 26, 2012, http:/7w\Yvv.cis. org/camarota,/new-dh S ' e stm]ates-coiifirm- 
ille gal- immigrant-popul atio n-stop p ed -dec li nin g-im d er-o bama . 



38 


6 


and private contractors, to manage its detainee population within reasonable detention standards. In 
addition. Congress should provide additional funding for contract transportation or transportation 
agreements with local law enforcement agencies. Some local jurisdictions have devised creative low-cost 
ways to transport detainees, and ICE should be directed to explore and pilot more such options where 
feasible. 


Most importantly, rather than looking for ways to avoid removing illegal aliens, DHS should be 
exploring ways to streamline the removal process so that their time in detention is reduced. Specifically, 
DHS agencies should be expanding use of expedited and stipulated removal. Our review of a sample of 
cases from ICE's Secure Communities and Criminal Alien Program suggests that in a number of cases, 
ICE officers are choosing more drawn-out proceedings ratlier than taking advantage of these tools that 
can benefit both aliens and tlic government. 

Detention Standards Include Advocate for Detainees, No Help for Victims. Another curious 
aspect of the Obama administration’s efforts on behalf of immigration law violators is the establishment 
of a complaint hot line and new ofiicial advocate within the ICE bureaucracy. ^ Meanwhile, those w-ho 
are the victims of tliis unlawful activity have no one in these agencies to speak to for for them. Congress 
should direct ICE to establish a Victim's Advocacy Unit to address the concerns of tliosc who arc victims 
of crimes and other damaging actions committed by removable aliens. Currently these victims and their 
families have no voice witliin tlie DHS bureaucracy, no avenue to get their questions answ^ered, and no 
w-ay to help ensure tliat immigration law enforcement failures that have tragic consequences arc not 
repeated. In fact, ICE appears to have no interest whatsoever in meeting and discussing their cases with 
surviving family members, much less providing basic information on how tlicy were handled. Hie 
Victims Advocacy Unit w^ould provide a point of contact for those directly affected by alien crime and be 
empowered to investigate incidents and trends with the goal of identiffing system breakdowns and 
correcting policy or procedural gaps, hi addition, the unit staff would w ork w itli established local and 
national victims organizations on issues of common concern. 


Respectfully submitted by, 

Jessica M. Vaughan 
Director of Policy Studies 
Center for Immigration Studies 
Washington, DC 
imv-ff:cis.org 


Andi'eW' Lorenzen-Strait, CE Announces First Ever Public Advocate,” http:// blog.dlis.gov/20i2/Q2.dce- 
anno mi ces-first-ever-Dublic.lit ml . 



39 


Mr. King. Thank you, Ms. Vaughan. 

I would recognize Mr. Crane. 

TESTIMONY OF CHRIS CRANE, PRESIDENT, 
NATIONAL ICE COUNCIL 

Mr. Crane. Good afternoon, Vice Chairman Gallegly — I am 
sorry. Vice Chairman King, and Members of the Committee. 

Executive Order 13522 in part states, “Federal employees and 
their union representatives are an essential source of front line 
ideas and information.” It goes on to say that union involvement 
services improve the productivity and effectiveness of the Federal 
Government, and that management should discuss workplace 
changes, challenges, and problems with labor, and endeavor to de- 
velop solutions jointly. The order was signed by President Obama 
on December 9th, 2009. 

Ironically, the very next day, December 10th, 2009, I gave testi- 
mony regarding ICE’s proposed detention reforms and detention 
privatization, stating emphatically that as a union and as Federal 
law enforcement officers, we should be involved in the pre- 
decisional development of ICE detention standards, emphasizing 
the President’s point that front line employees have valuable 
knowledge and experience that can make our government function 
more effectively. 

Appropriate 2 and a half years after my 2009 testimony, ICE’s 
new detention standards were implemented. There was never any 
union involvement. DHS and ICE excluded its own officers. 

Safety concerns are at the top of our list, safety for both officers 
and detainees. At ICE, some detention facilities now prohibit offi- 
cers from carrying handcuffs. Some facilities prohibit officers from 
wearing uniforms, allegedly because detainees find uniforms offen- 
sive. Detainees wear street clothes and are free to wander through- 
out the facility, and even enter officer work spaces. 

Last night, an officer working in a low security facility reported 
that all officers and guards at his facility, inside and outside, are 
unarmed. There are no armed personnel at all providing security 
at the detention facility. He stated that there are no fire detectors 
inside detainee housing units leading the facility failing two fire in- 
spections. Yet ICE headquarters directed that detainees be housed 
in the facility anyway, a dangerous gamble at best. 

Approximately 1 year ago, ICE leadership divulged the assaults 
against officers and escape attempts were up significantly, doubling 
numbers from the previous year. While data supporting these 
claims is not available to the union, we had already observed an 
apparent increase in the number of assaults and escape attempts. 

Efforts by the union to discuss stronger safety precautions for 
ICE officers has been met with strong opposition by ICE. This as 
the Administration efforts to apprehend the worst of the worst led 
to the obvious: detainee populations that are increasingly more 
dangerous and criminal in nature. 

New ICE detention standards provide no criminal background 
screening of visitors, as is standard practice at agencies like the 
U.S. Bureau of Prisons. Without screenings, ICE will permit indi- 
viduals who pose a security threat to enter detention facilities, 
threatening the safety of both detainees and officers. 



40 


New ICE detention standards continue to establish pat down 
searches as the standard security search of detainees prior to ad- 
mission or reentry into an ICE detention facility, not strip 
searches, creating an increased risk that weapons, drugs, and other 
contraband will enter ICE facilities. 

New ICE detention standards also establish prohibitions on strip 
searches of detainees following full contact visitation with members 
of the public. New ICE detention permit detainees to observe as of- 
ficers search detainee housing and work areas, allowing detainees 
to monitor and learn officer search techniques better enabling de- 
tainees to conceal dangerous contraband inside the facilities. 

New ICE standards allow for detention officers to perform med- 
ical and mental health screenings of detainees to include 
screenings for emergent medical conditions, suicide risk, and con- 
trolled substance dependency. If interpreted correctly, new stand- 
ards prevent detainees with serious medical concerns from seeing 
qualified medical staff for 36 hours or more, recklessly assigning 
important medical duties to officers instead of medical profes- 
sionals. 

In conclusion, as a union and as Federal law enforcement offi- 
cers, we do not oppose public outreach as part of policy develop- 
ment, but we do point out that such approaches are unbalanced 
and ineffective when law enforcement officers who perform the du- 
ties involved are prohibited from providing input as well. We be- 
lieve that new detention standards proposed by ICE are at times 
unsafe, unsafe for detainees and unsafe for employees. Good inten- 
tions do make for sound security, and do not create a safe deten- 
tion setting. 

If the Administration is concerned with providing a safe deten- 
tion setting for detainees and safe working conditions for employ- 
ees, it will begin to work with the union toward achieving those 
goals. 

This concludes my testimony. Thank you, sir. 

[The prepared statement of Mr. Crane follows:] 



41 


statement by Chris Crane, President, 

Nationai immigration and Customs Enforcement Council i i8 
of the 

American Federation of Government Employees 


Before the 

Judiciary Subcommittee on Immigration and Policy Enforcement 

March 28, 2012 



42 


Good afternoon, 

On December 1 0, 2009, 1 testified before the Subcommittee on Border, Maritime and Globa! 
Counterterrorism, House Homeland Security Committee regarding ICE Detention Refoims. 
Among other things, I testified that the lack of oversight of ICE contract employees presented 
perhaps the most significant risk to detainee welfare; T testified that ICE detainee populations 
were becoming increasingly criminal and \doient in nature, and that while DHS Secretary Janet 
Napolitano and ICE Director John Morion brought in over a hundred “stakeholders” consisting 
primarily of immigrants advocacy groups to provide mput on tire new ICE detention standards, 
both DHS and ICE excluded ICE officers, agents and field managers from having mput in 
creating the new ICE detention standards. 

it was with great appreciation that the union accepted the 2009 invitation from Representative 
Loretta Sanchez to testify before Congress. Subcommittee staff shared union concerns that the 
so called ICE detention refonns provided no teal increase in oversight of ICE detention centers, 
the most significant change needed to provide for tlie proper welfare ofTCE detainees. In large 
part, ICE detention centers already had sufficient standards that were in keeping with national 
detention guidelines established by nationally recognized accreditation associations. Problems in 
ICE detention facilities arose when those guidelines were not followed, a byproduct of 
mismanagement and inadequate oversight by ICE. In our opinion, without proper management 
and oversight of contractors to ensure standards are followed, new' standards do not equate to 
improvement. 

Regarding union involvement in the new' detention reforms since the 2009 hearing, there was 
none. .Tanel Napolitano and John Morton actively sought for over three years to exclude their 
own employees from any and all participation or input in the new detention refonns; tlie most 
auti-nnion and anti-fcderal law enforcement campaign we have witnessed. As employees, we 
were shocked and embarrassed by the actions of both individuals. On October 15, 2010, ICE 
Director John .Morton signed an agreement regarding the new detention standards sent to AFGE 
National President Jolm Gage agreeing that ICE would engage the union in interest based 
bargaining, a type of bargaining that lends itself to an open discussion of i ssues. When the 
agency and union met to bargain, ICE Director Morton and his staff broke the agreement and 
refused to bargain with the union. Members of the Federal Mediation and Conciliation Service, 
as well as the Federal Service Impasses Panel were called upon. Doth informed ICE leadership 
that they must bargain with the vuiion. ICE utilized stalling tactics to prevent bai'gaining of the 
new detention .standards during the two W'eek negotiation session. 

Now that ICE had successfully avoided batgaming witli the union during the first negotiation 
session, John Morton and his staff notified the imion that the policy was to be dropped 
altogether. Wc suspect that this was done in an attempt to permanently nullify the original 
agreement Director Morton signed with AFGE President John Gage to bargain with the union. 
The tactic was shnplc, if the new detentirm standard.s policy w'as taken off the table completely, 



43 


Morion’s agreement with the union to utilize interest based bargaining would die with it. 

Keeping in step with that strategy. Director Morton later reinstated the new detention standards 
policy under a new notice to the union, but this time refused to utilize interested based 
bargaining as previously agreed to.. By breaking the original agreement with the union and 
refusing to engage in interest based bargaining, Director Morton knowingly decreased the 
union’s ability to provide input by approximately 95%. But it did not end there. 

In October 2011, after ap proximately three y ears of mismanaged efforts to change ICE detention 
standard.s, a project that should have taken no more than a year, John Morton and his staff 
notified the union that the new detention standards policy had to be bargained by January 1, 

2012, The union scrambled to meet the timelines, submitting an incomplete list of 224 proposed 
changes. ICE accepted the propo.sais but w'hen the parties met to negotiate the new detention 
standards ICE determined that it wanted to bargain a different policy instead. In good faith, the 
union agreed to bargain a different policy with a commitment from .Tohn Morton and his staff 
that the new detention standards would be bargained on another date. On January 20, 2012, ICE 
notified the union that all of its proposals, which had previously been accepted by ICK and 
scheduled by ICE for bargaining in November 2011, were now delcnnined unilaterally by ICE to 
be non-negotiable with no discicssions with the union or a third party, so the new detention 
standards were implemented by ICE Director John Morion immediately with no union 
involvement. 

Important to note, had the union refused to bargain a different policy in November 2011 and 
insisted that the detention standards be bargained, the union would have secured many of its 
bargaining rights. Instead, when ICE asked for our assistance in completing a different policy it 
needed to implement, the union obliged and completed the policy in short order. DHS Secretary 
Janet Napolitano and ICE Director .John Morton repaid the favor by breaking yet another 
agreement and deceptively excluding the union from bargaining the new detention standards 
altogether, stripping the union and federal law enforcement officers of their part in this process 
as American citizens. The tliree year exclusion of the union in the creation of new ICE detention 
standards cannot be justified and flies in the face of the Presidential Executive Order 13522, 
signed by President Barack Obama which states in part, '‘allow employees and their iminn 
representatives to have pre-decisional involvement in all workplace matters to the fullest extent 
practicable, without regard to whether those matters are negotiable subjects of bargaining under 

5U.S.C. 7106. " 

ICE has now notified the union that it will not even engage the union in post implementation 
bargaining of the new standards for the purpose of developing adequate training programs for 
officers and ensuring appropriate officer safely protocols are in place. It is apparent that those 
representing the safety, health and wellbeing of federal officers and their families will not be 
heard by this Administration. 



44 


Detainee Populations 

In 2009, ICE announced its goal of having a nationwide detainee population consisting of at least 
85% to 90% convicted criminals within 12 months. Currently, while not every ICE detainee is a 
convicted criminal, ICE has moved toward a “conviction only*' model and stressed publicly its 
desire to arrest the “worst of the worst.” Clearly, any efforts that increase targeting of the most 
violent criminals will result in a more violent, aggressive and overall dangerous detainee 
population in ICE facilities nationwide. ICE officers around the nation believe that is exactly 
what is happening. 

As officers, we are concerned that as detainee populations become more criminal in nature and 
violence by detainees appears to be on the rise, security protocols within ICE facilitie.s appear to 
be weakening. While the purpose of ICE detention may not be punitive in nature, one cannot 
ignore tlic dangers associated with holding large numbers of criminals against their will pending 
removal. For that reason, the Administration should be working with the union to increase 
security and safety protocols in conjunction with new- changes to ICE detention standards and 
detainee populations - but the Administration is not. It is the union's opinion, that if left 
unchecked, the Adminhstration’s actions will defeat many of its otvn stated goals by creating a 
more dangerous detention system resulting in injury' to ICE detainees. ICE officers and contract 
employees. 

A.s.saulis agaiii.st officers 

•Approximately one year ago ICE leadership divulged to union representatives that assaults 
against officers and escape attempts were up significantly, doubling numbers from the previous 
year. While data supporting tliese claims is not available to employees or the union, the union 
had already observed what appeared to be a sleep increase in both violence and aggression by 
dctainee.s against officers as w'ell as escape attempts. 

A push by the Administration to change detention standards and create a more criminal detainee 
population has been accompanied by no measures to increase safety for ICE officers and 
contractors. In fact, the trend has been to knowingly make conditions more dangerous in the face 
of valid concerns voiced. Attempts by the union to discuss stronger safety precautions for ICE 
oillcers and agents have been met w'ith strong opposition by' ICE. ICE and DHS appear to have 
a singular concern for working with immigrant’s advocacy gi oups, and no concern for w orking 
with unionized federal law enforcement officers, as shown by the DHS/ICE exclusion of union 
involvement in detention refonns, 

ice; currently has no national reporting system accessible to employees for reporting detainee 
assaults against officers, and no national training exists to guide officers on reporting assaults. It 
is hard to imagine that such an inexpensive measure so fundamental to the safety of employees is 



45 


not already in place. As a result, many assaults go unreported as officers are not provided 
guidance on reporting assaults, and managers may unilaterally determine not to report assaults 
through the chain of command for varying reasons,: such as when mismanagement or low 
staffing are contributing factors. Perhaps most importanily, trends or “lessons learned” are not 
identified, tracked or shared nationally that could prevent future assaults or allow individual 
officers or the agency as a whole to better prepare. The gathering, sharing and utilization of this 
typo of internal intelligence is critical to officer safety and practiced by almost every legitimate 
law enforcement agency in the nation, except tCE. Our concerns for officer and detainee safety 
should be the Administration’ s concerns: it is troubling that they arc not. 

No Criminal Background Screenings of Visitors 

New ICE detention standards provide no crimuial backgrPimd screening of visitors before they 
enter an ICE detention facility. Background screenings of visitors are standard practice at most 
detention facilities throughout the nation, to include those run by the U.S. Bureau of Prison.s. 
Without appropriate screening, ICE will unknowingly permit convicted felons, wanted fugitives, 
and other individuals who pose a security tlnrcat to tlic facility, or a safely threat to employees 
and detainees, to enter ICE facilities. Conducting backgroimd checks of visitors is a long held 
and proven law' enforcement security practice established by other agencies in their facilities to 
establish safety, security and good order. 'I'o ignore these protocols blatantly and negligently 
places the lives of ICE detainees and ICE employees at risk and compromises the o verall 
security of ICE facilities, W'hich often hold large numbers of violent and aggressive criminal 
detainees who pose a significant threat to communities if able to escape. Some of course may 
also have terrorist ties, as may their unscreened visitors. 

In discussions with ICE leadership, ICE stated that it was concerned tliat aliens attempting to 
enter ICE facilities would be identified as being in the U.S. illegally during backgroimd 
screenings and would therefore be subject to arrest or otherwise unable to enter the facility. ICE 
was more concerned witli preserving the ability of foreign nationals illegally in the U.S. to enter 
ICE facilities than the safety of its own officers and the general security of ICE detention 
facilities and communities nationwide. 

It is my understanding that all facilities and camps utilized by the U.S. Bureau of Prisons (BOP) 
require, among other things, that each person entering a BOP facility first pass a criminal 
backgroimd screening. We ask that members of Congress support us in instituting similar 
security protocols in ICE detention facilities. 

ICE Prohibition on Strip Searches 

A “pat dow'n search,” is a technique developed primarily for law' enforcement officers making 
airests on the street enabling the detection of weapons and other dangerous items and providing 
for immediate and short term officer safety until a more thorough search can be conducted in a 
secure and private location. Pat down searches may also be utilized in some facilities during the 



46 


initial intake process in semi-public areas, but consistently are I'ollo wed by strip searches in a 
private location before the individual enters the facility’s detainee/prisoner population. While 
for the most part effective in detecting most weapons, pat down searches do not detect all 
weapons and can be highly ineffective in detecting all manner of miscellaneous contraband such 
as controlled substances. Throughout law enforcement, strip searches of those admitted to 
detention facilities, jails and prisons is standard practice and is considered essential in preserving 
life and safety. 

While assaults against ICE officers appear to be increasing and the .A-dministration pushes ICE to 
detain the most violent and dangerous criminals citing a goal of 100% convicted criminal 
populations, new' ICE detention standards establish the highly ineffective pat dow'n searches as 
the standard search for ICE detainees prior to their admis.sion to an ICE facility, not strip 
searches, creating the opportunity for unprecedented levels of smuggled w'capons and drugs to 
enter ICE facilities placing the lives and safety of ICE officers, contractors and d etainees at 
greater risk than ever before. 

ICE officers and conteact staff are prohibited from conducting strip searches of detainees 
entering ICE facilities unless the officer can meet and articulate the law enforcement standard of 
“reasonable suspicion.” Reasonable suspicion was not intended to and cannot effectively be 
applied to individuals smuggling small items into a detention setting on their bodies, under 
clothing, that is not visible and cannot be felt by touch. Reasonable .suspicion when applied to 
the smugglihg of well concealed contraband into ICE facilities will generally require an 
allegation or admission by a detainee that a specific detainee is smuggling contraband. 

Otherwise the presence of contraband must be so obvious that it is visibly detected or easily felt 
during pat dow'n searches. In discussing reasonable suspicion, the new ICE detention standards 
state, “No simple, exact or mathematical formula for reasonable suspicion exists,” clearly 
identifying it as an impractical and ambiguous standard to meet. Security protocols protect lives 
and cannot rely on concepts that are impossibic to qualify. 

Even with strict requirements at most state and federal facilities that officers conduct thorough 
pat down searches of prisoners prior to entering a detention facility, strip searches routinely 
result in the detection of weapons, drugs and otlier contraband missed by officers during 
thorough pat down searches. 

Important to note, new ICE detention standards also establish limited prohibitions on strip 
searches following full contact v'isitation witli the public, to include attorneys, legal assistants, 
consular officers or “accredited representatives,” automatically assuming that any of these 
groups are less prone to smuggle contraband simply based on their positions as detainee 
representatives. As just one example, a recent aiticle in the USA TODAY titled, “Strippers pose 
as legal aides at detention center, ” reports that strippers hired by drug lords posed as legal 
assistants and were able to enter a maximum security federal detention center. Once inside, the 



47 


imposters committed various improper acts and allegedly smuggled money and pornography to 
detainees. 

It is the union’s opinion that new prohibitions on strip searches ignore sound and proven 
detention practices utilized nationwide and we asli members of Congress to support us in 
changing this standard. In order to preserve life and safety' inside ICE detention centers for 
detainees and officers, .strip searches follow’ing full contract visitation or upon initial admission 
or reentering a detention facility must be the nationwide standard in ICE detention facilities as it 
is in other organizations such as the U.S. Bureau of Prisons. Strip searches are not a punitive 
action in any organization, but instead a proven safety and security Icclinique. As ICE detainee 
populations become increasing more dangerous, forcing TCF employees to adhere to a separate 
and hazardous standard is at best unethical and inappropriate. 

ICE Detainees May Observe Searches 

New ICE detention standards allow for detainees to observe ICE officers and contractors as they 
search detainee housing and work areas as well as when officers search personal items contained 
within those areas. 

Generally, searches are conducted by one officer searching housing units that contain more than 
one detainee. Officers catmot safely search and inspect housing and work areas and monitor 
detainees at the sante time, even if only one detainee is present. Most impOrtailtly, however, 
when detainees observe officer searches they are also able to monitor and leatii officer search 
techniques allowing them to better conceal contraband such as weapons and controlled 
substances within the facility. 

Medical, Dental, Mental Health, Substance Abuse and Suicide Screenings for Detainees to 
be performed by ICE officers 

New ICfi detention standards allow for “detention officers” to perform initial medical, dental and 
mental health screenings of detainees to be conducted within 12 hours of arrival. This vvill 
include detention officers que.stioning and observing new detainees with regard to emergent 
medical conditions, mental ilhicss and propensity for suicide, as w'ell as reliance on and potential 
for withdraw'al from mind and mood ahering suhstances. Detainees responding in the 
affirmative to any of these conditions will see a qualified, licensed health provider no later than 
two working days &om the time of the initial screening. Of course medical attention witliin two 
working days is solely dependent on “detention officers” properly recognizing and reporting 
suspected conditions. 

If interpreted correctly, new ICE detention standards prevent detainees with potentially serious 
mental, medical or dental issues from seeing qualified medical staff for 36 hours or more after 
being placed in detention. Most concerning, under the new ICE detention standards ICE officers 



48 


and agents will now perform medical screenings and evaluations regarding matters of life and 
death tjpically reserved for highly trained medical professionais. 

This standard, as with others is blatantly negligent and places ICE detainees at risk. It is the 
union’s position that the only responsible approach is that these t>pes of duties be performed by 
medical professionals. 

Conclusion 

As a union and as federal law enforcement officers we do not oppose public outreach as a part of 
policy development, but we do point out that such approaches arc unbalanced and meffective 
when law* enforcement officers who perform the duties and are familiar with current practices, 
facilities and equipment involved are prohibited from providing input as well. New detention 
standards proposed by ICE are unsafe; unsafe for detainees and unsafe for employees. Good 
intentions do not make for sound security and do not create a safe detention setting. In addition 
to many parts of the new standards being unsafe, the policy is littered with ambiguous statements 
and titles that require clarification so that officers and managers in the field can successfully 
implement and follow tlie new guidelines and clearly understand the different roles of 
contractors, managers, officers and agents. As ICE is consistently criticized for not following its 
own policies, training programs for ICE officers will be critical to ensuring policies arc 
imderstood and adhered to in the field. For years ICE leadership has refused to provide adequate 
training for officers, a far reaching problem that the union is attempting to rectify, Witliout 
union involvement, training for the new detention standards will amount to nothing more than 
“checking a box” resulting in officers not being familiar whth new* standards and therefore not 
following them. 

If the Administration is only concerned with implementing a policy for political purposes it will 

move forward with the new detention standards as is. If the Admimstration is concerned with 

providing a safe detention setting for detainees and safe working conditions for employees it will 
work with the union in achieving those goals. 

This concludes my testimony; I welcome any questions that you may have. 


Mr. King. Thank you, Mr. Crane. 

And I would now recognize Ms. Brand. 

TESTIMONY OF MICHELLE BRANE, DIRECTOR, DETENTION 
AND ASYLUM PROGRAM, WOMEN’S REFUGEE COMMISSION 

Ms. Brane. Good afternoon. Thank you for this opportunity to 
testify about this matter, which profoundly affects the lives of hun- 
dreds of thousands of 



49 


Ms. Lofgren. Could you pull your microphone a little bit closer 
so we can hear? 

Ms. Brane. The Women’s Refugee Commission identified as 
GAPS, researches solutions and advocates for change to improve 
the lives of crisis affected women and children. For nearly 2 dec- 
ades, we have visited immigration detention facilities throughout 
the United States and spoken to detention center staff, local service 
providers, and to detainees about policies, practices, conditions of 
detention, and access to protection. 

There is no question that conditions of immigration detention in 
the United States have been inadequate, inhumane, and unsafe. 
These conditions have been in violation of the U.S. Constitution 
and our obligations under international law and treaties, exposing 
detainees to harm and leaving the Department of Homeland Secu- 
rity and its employees vulnerable to litigation. 

The purpose and authority of ICE detention is to hold, process, 
and prepare individuals for removal. It is not to punish or rehabili- 
tate. Despite this distinction, ICE uses a penal incarceration sys- 
tem. Regardless of whether it is inconvenient, the agency has a 
duty to provide basic services and care to those it detains. Any- 
thing less is unlawful. 

The detention reforms we are discussing today are a response to 
the public outcry and litigation over conditions of confinement. 
Abuses and inhumane conditions have been well documented by 
NGOs, the media, and government oversight agencies. The 2009 re- 
port by former DHS special advisor. Dr. Dora Schriro, concluded 
that significant reforms were necessary. 

The violations led ICE to launch a much needed reform effort, in- 
cluding the updating of the 2008 standards. Despite years of devel- 
opment, the 2011 standards are only slightly better. They do, how- 
ever, articulate stronger guarantees to appropriate and necessary 
medical/mental health and women’s health care, and protections 
against sexual assault for immigration detainees. 

Let us be clear. These standards for confinement are no hospi- 
tality guide. 

In my numerous visits to detention facilities, I have encountered 
a litany of shortcomings, abuses, and tragic consequences. As evi- 
denced by over 120 documented deaths in immigration custody 
since 2003, this lack of medical care is not a frivolous matter to be 
cast aside as insignificant. The case of Mr. Boubacar Bah’s death, 
previously articulated by Representative Lofgren, is a case in point. 

The current medical standards for women also fall well below 
those in our Federal prison system. Women have been denied medi- 
cally necessary treatment and prenatal care that have resulted in 
serious consequences, including untreated cancer and miscarriages. 
Even basic needs, such as sanitary napkins, have been inconsist- 
ently available. 

Sexual assaults occur during intake, during detention, and even 
during transport and removal. Frontline recently highlighted sex- 
ual assaults at the Willacy Facility in Texas. In 2009, a guard 
forced a woman at the Willacy Detention Facility into a bathroom 
and raped her. He threatened to make things worse for her if she 
reported the assault. He was not sentenced until 2 years later 
when he pled guilty in August of 2011. 



50 


The 2011 standards include basic provisions for treatment that 
are consistent with, not more generous, than what is available in 
the Federal prison system and by law. These include appropriate 
guidelines for the provisions of medical care, including access to 
prenatal care and gynecological services, limits on the use of shack- 
les for pregnant women, and provisions to prevent and respond to 
sexual assault, including a requirement that victims be provided 
emergency and medical health services. 

To imply that these very basic protections are a holiday or an 
undue burden on the agency is simply wrong. The new provisions 
bring ICE detention standards closer to a minimum level of compli- 
ance with legal obligations of a civil detention system. They will re- 
align priorities so that people like Mr. Bah and victims of sexual 
assault receive basic needed medical care and protection from abu- 
sive practices. They also provide clear guidelines and protection for 
agency and facility staff. 

Instituting reforms to improve the operation and oversight of de- 
tention operations should be welcomed. Revising existing detention 
standards is not only necessary for the safety of detainees, it is a 
significant opportunity for ICE to create a more efficient and effec- 
tive system of enforcement. 

This concludes my testimony, and I am happy to take questions 
at this time. 

[The prepared statement of Ms. Brand follows:] 



51 


COMMITTEE ON THE JUDICIARY: SUBCOMMITTEE ON IMMIGRATION POLICY AND 

ENFORCEMENT 

“Holiday on ICE: The US. Department of Homeland Security’s New Immigration Detention 

Standards.” 

Written Testimony of Michelle Brand 
Director, Detention and Asylum Program 
Women’s Refugee Commission 

Washington, DC 
March 26, 2012 


Good afternoon. Thank you for this opportunity to testify about this extremely important 
matter, which profoundly affects the lives of hundreds of thousands of people. 

The Women’s Refugee Commission identifies gaps, researches solutions and advocates for 
change to improve the lives of crisis-affected women and children.. In particular, the 
Detention and Asylum Program focuses on the detention of migrants and access to due process 
and human rights protections within the United States. For nearly two decades we have visited 
immigration detention facilities throughout the United States and internationally, and spoken to 
detention center staff, local service providers and to detainees about policies, practices, 
conditions of detention, and access to protection. There is no question that conditions of 
immigration detention in the United States have been grossly inadequate, inhumane, and unsafe. 
These conditions have been in violation of the U.S. Constitution and our obligations under 
international law and treaties, exposing detainees to harm and leaving the Department of 
Homeland Security and its employees vulnerable to litigation. 

ICE operates the largest detention and supervised release program in the country. In FY 2010, 
the agency detained approximately 363,000 individuals, not including those enrolled in 
supervisory programs.' On an average day in FY 2011, ICE had in its custody over 33,300 
individuals.^ Many will be detained for months or even years. It is critical to understand the 
difference between the administrative purpose of ICE detention and the punitive purpose of the 
criminal incarceration system. The purpose and authority of ICE detention is to hold, process, 
and prepare individuals for removal. It is not to punish or rehabilitate. Despite this distinction, 
ICE relies primarily on a correctional incarceration system. Aside from a few exceptions. 


' ''Annual Report: Iinniigration Enforcement Actions; 2010.” Department of Homeland Security Office of 
Inunigration Statistics. Jtme 2011. litto:..7tvrvw.dhs.gov.txlibrartyassets.tst3tistics/Dublications/enforcem e nt-ar- 
2010.pdf 

- ''Fact Sheet: Detention Management.” Inunigration and Customs Enforcement. November 10, 2011. 
http'/.'www ice qovVnews.1ibrarv/faclsberrts,tdeteniin n-inpmt btni 



52 


detainees are confined in facilities that were built and operate as jails and prisons intended for 
pre-trial and sentenced felons. This system both imposes more restrictions and provides fewer 
protections than are necessary or appropriate for this distinct population. Immigration detainees 
have very different needs and security requirements from those of populations awaiting criminal 
proceedings or serving criminal sentencing.^ 

ICE has no criminal detention authority, but pursuant to the Immigration and Nationality Act 
ICE has administrative authority to detain aliens during the removal process. Regardless of the 
purpose of detention, the agency has a duty to provide basic services and care to those in its 
custody. 

Immigration detainees include pregnant women, families, the sick, the elderly, legal permanent 
residents, torture survivors, and victims of human trafficking. In addition, U.S. citizens are 
increasingly being detained as immigrants, leading to the need for a hotline to address the 
problem.'’ Due to the civil nature of the system, immigration detainees are not entitled to a court- 
appointed lawyer and 84% do not have an attorney.^ 

The detention reforms we are discussing today are a response to the public outcry and litigation 
over conditions of confinement for the hundreds of thousands of individuals who are detained by 
ICE each year that were — and continue to be — inappropriate, inefficient, and unsafe. In 
addition to inadequate standards, the system lacks an effective oversight mechanism. ICE’s 
Jailors violate current minimum standards of confinement frequently and often with impunity. 
Abuses and inhumane conditions have been well documented not just by NGOs such as the 
Women’s Refugee Commission,’ but also by investigative reports including the New York 


^ Despite all too coiiunon references to the ciiininalit>' of iiiuiiigi<uits in iimiiigration proceedings, detainees in 
iimnigieition custody arc being held on adiiiinistrativc, civil infiactioiis and arc not solving ciiininal sentences. ICE 
docs not have authority to detain aliens for criminal \iolations. Tlic authority’ to detain on criniinal charges lies with 
the Dcpartniciit of Justice, subject to review of tlic federal courts. For example, wliilc many aliens who enter 
illegally liavc conmiitted a misdemeanor criminal offense in violation of 8 U.S.C. 1325, it is the Dcpailmcnt of 
Justice, not ICE that lias the autliority’ to detain aliens for that criminal violation wliilc criminal proceedings aic 
pending. Dr. Dora Schriro. Immigrotion Detention Overview and Recommendations, Department of Homeland 
Security’. Immigration and Customs Enforcement. Oct. 6, 2009, available at 
http'//w'w'w. ice. gov.'doclib/09 1005 ice detention report-final.pdf 

^ Immigration proceedings are crihl proceedii^s and immigration detention is not punishment- Zadvydas k-. Davis, 
533 U.S. 678, 609 (2001). 

’ Jiiha Preston, Immigraiion Crac^kdown also Snares Americans, New York Times, December 13, 2011, available at; 
littpj/.rivw’w.mliines.com/^O 11/12 T4/us,'measures-to-capture-illesal-ajiens-nab-citizens.]itmUDagewaiited~all: 
http://w'w'w. ice.gov/detention-reform/toll-free-hotline/ 

S. Lewis andParoniita Sliali ''Detaining America's Immigrants: Is tliis the Best Solution?," Detention 
Watch Network. 

Women's Refugee Commission Migrant Women and Children at Risk: In Custody in Arizona. October 2010, 
available at: http'//w'ww .womensrefueeecommissioa.org/resources?'^doc downloaii/656-mim'ant-women-and- 
childr en -at-risk-in-custodv-in-arizoiLa: Detained and Dismissed: Women's Struggles to Obtain Health Care in 
United States Inunigration detention Human Rights watch, March 2009 



53 


Times,* the Washington Post,^ and government agency reports such as the Government 
Accounting Office and the DHS Office of the Inspector General.*” A report by then-DHS Special 
Advisor Dr. Dora Schrlro, Issued after an extensive internal review of the system, concluded that 
significant reforms were necessary." 

As a result, ICE announced in 2009 the beginning of a reform effort. Reforms included 
reviewing and updating the 2008 Performance Based National Detention Standards (PBNDS) to 
address the many concerns and shortcomings outlined in Dr. Schriro’s report, the media and by 
advocates.'^ On February 27, 2012, ICE released the updated 2011 PBNDS. These long- 
andcipated standards were a welcome step that, when implemented, will afford thousands of 
immigrants in immigration detention slightly more appropriate environments. Perhaps most 
importantly, the 20 1 1 PBNDS articulate stronger guarantees to appropriate and necessary 
medical, mental health, women’s health care, and protections against sexual assault for 
immigration detainees. But let’s be clear, they are not a “hospitality guide.” Rather, they set the 
minimum standards necessary to prevent abuse, neglect, injury, or death. Moreover, these 
standards, despite years of development, are only slightly better than the 2008 version. Concerns 
remain that these new standards are insufficient to hold accountable the hundreds of facilities 
under ICE contract, many of which are still operating under insufficient standards that date back 
to 2000. 

Conditions of Detention 

In my numerous visits to detention facilities across the country 1 have encountered reports of 
sexual assault, insufficient medical care, lack of access to telephones, frequent and disruptive 
transfers, limited access to legal services, severely limited recreation and visitation, and 
restricted access to family courts that has led to the permanent loss of parental rights. Prohibition 
of contact visits among family members is common and was found to be “unnecessary and 
cruel” by the Police Assessment Resource Center in October 2009.'* Telephone access in 
immigration detention is plagued by broken equipment, confusing and complicated instructions. 


^ for example: Nina Bernstein, III and in Pain Detainee Dies in U.S. Hands., New York Times, August 12, 2008 
avaiiabie at: lttttr://w'ww. m firncs.coiif 2008/08/ t3./iivrcaioiijT3dctaiirhtml‘tpaecwantcd~ajl 
^ Dana Priest and Arny Goldsteirr, Careless Detention, Washington Post, May 11-14, 2008, available at 
}tttp://ww'w ,waslringtonpn.st.coin'w'p-SE\7nalion:’specialstininiigr3tion/cw'c dlpl.html 
Department of Hornelarrd Security^ Office of Inspector General, Immigration and Customs Enforcement: 
Detention Bedspace Management, O1G-09-.32, April 2009, available at 

btlD.//w w w .dils.aov.txoie/asscts.’mgmtinl&/OIC 09- 52 Api09-ljdf: Immigrations and Custom Enforcement Policies 
and Procedures Related to Detainee Transfers, DHS Office of Inspector General, OIG-10-13, Nov. 2009, available 
at http:/ ti'vnv. dhs.gov soigtassets-'mgmtrptsIOIG l 0-1 3_Novl)9.pdf 

' ' Dr. Dora Schriro. Immigration Detention Overview and Recommendations, Depaitrnerrt of Hornelarrd SecuriW, 
Inrmigratiorr aird Customs Eirforcemerrt. Oct. 6, 2009, 

available at http ,'/w ww.ice,gov/’doclib/091005 ice detention_report-final.pdf 
’’ See ICE Press Releases at ltitp://w’tvweice.gov/pn'ni70910/091020boston.btni and 
littp:./'ww'W'.ice.goY/pi/iir/091 1.t091123plirfadelphia2.htm 

' ^ Police Assessrnerrt Resource Center, The Los Angeles County Sheriff s Department 28th Semiannual Report, Oct. 
2009. at 41. available at ]rrtp77wwvy.parc.info/client fjlesAASD/281hf^0SeniiatnrnaI%20Report.pdf 



54 


steep service rates, and limited hours of operation. The use of remote facilities and the overuse of 
transfers severely curtail detainees’ access to legal services and family, and impede their ability 
to challenge their detention and deportation. Advocates in Minnesota reported in 2009 that it 
takes attorneys an average of six days to make initial contact with their clients in immigration 
detention.'’’ The DHS Inspector General documented the harsh and disruptive consequences of 
frequent and haphazard transfers in their 2009 report.'^ 

Overwhelmingly, what strikes most people after meeting with detainees is the daily humiliation 
and lack of contact with the outside world. Most ICE facilities have open showers and toilets 
with no shower curtains, doors or partitions. Even the provision of shower curtains that begin at 
the waist have been welcomed by detainees as a significant improvement. In addition, when 
detention lasts for extensive periods, recreation is not a luxury but a fundamental human right. 
Many TCE facilities provide at most one hour of recreation in an enclosed area with no exposure 
to natural light. Lack of exposure to natural light and air for extended periods of time can also 
lead to medical issues, skin conditions, and mental health issues. 

The litany of shortcomings, abuses, and tragic consequences are too numerous to address here in 
their entirety. T will concentrate on a few areas that have been of particular concern to the 
Women’s Refugee Commission and which are addressed, at least in part, in the new 201 1 
PBNDS. 


Medical Care 

Medical care is a critical concern in immigration detention. The denial of adequate medical care 
to immigration detainees is well documented.*^ Reports are based on hundreds of interviews with 
detainees, direct observations, and conversations with jail and immigration officials over the past 
decade. Deficiencies include difficulty accessing medical records; delayed or denied care; 
shortage of qualified staff; unsanitary facilities; improper care of mentally ill patients; inadequate 
care of physically disabled patients; denial of and inattention to administration of prescription 

Jacob Cliiii, Katherine Fcmicly, Katlilccn Moccio, Cliarlcs Miles, Jose D. Pacas, AUorney^i ’ Fcrspcclives on tho 
Rights of Doiuinod Immigfanls in Minnesolu, Nov. 2009, available al http:,'7ia\vprofcssors.ri''pepad .com/fiic&'fniai- 
cnjra-artic1e-l l-10-09.pdt 

Department of Homeland SecuriW, Office of Inspector General, Immigration and Customs Enforcement’s 
Tracking and Transfers of Detainees, OIG-09^1, March2009, available at 
hltotywww. diis.gov/xoig/assets/mgnitmls/OIG 09-t I Mar09.ixtf 
Women's Rcfligcc Coimnission, Politicized Neglect: A Report fiom Etowah County Detention Center, March 
2012, available at: littp:/Vw'ww.womcnsrcfngcccoiiiiiiission.oiwrcsouiecs/dQC dow'tiioad/809-politicizcd-ncglcct-a- 
reDort-from-etovvali-coimri'-detenlion-center . Women's Refugee Conmiission, Migrant Women and Children at 
Risk: In Custody in Arizona, October 2010. Available at: 

bttp:/7wivw.womeiisfefugeeconimissiotLorg/resomces.''doc dow^nioad/656-mi.grantrtvomemand-cliildreii-at-risk-im 
ciistodv-j !i-aiizona : Women's Refugee Conunission and Lutheran Immigration and Refugee Service, Locking Up 
Family Values: The Detention of Immigration Families, February' 2007, av'ailable at: 

hllp'/’Vww'w.woiiiensrefugeecommissiGiLorg/'resoin'ces./doc download/LSO-Iock i ng-uii-familv-values-the-detentiom 
giyiimiiigrantrt'a nuUe?; letter to ICE regarding our visit to Willacy, Women's Refugee Commission and Dr. Susan 
MacNaniara, April 6, 20 10. Available on file from the WRC; Human Rights Watch. Detained and Ignored 



55 


medication; lack of translation; abusive behavior by some clinic staff; and threats of transfer in 
retaliation for complaints. 

As evidenced by the over 120 documented deaths in immigration custody since 2003, this lack of 
medical care is not a frivolous matter to be cast aside as insignificant.'^ Prior to the 
implementation of reforms, not only were detainees dying in immigration custody due to lack of 
even basic medical care, these deaths were routinely not recorded or reported until brought to 
light through outside inquiry from family or advocates.'* 

Mr. Boubacar Bah: The case of Mr. Bah, documented by Nina Bernstein in the New York Times, 
demonstrates the extreme negligence and inhumane treatment that has happened under the 
immigration detention system we are talking about reforming. Mr. Bah died after emergency 
surgery for a skull fracture and multiple brain hemorrhages. “Government documents detail how 
he was treated by guards and government employees: shackled and pinned to the floor of the 
medical unit as he moaned and vomited, then left in a disciplinary cell for more than 1 3 hours, 
despite repeated notations that he was unresponsive and intermittently foaming at the mouth.”*® 

"It began ahonl S a.m Guards catted a mcdicat emergency after a detainee 

saw Mr. Bah cottapse near a foitet, hitting the back of his head on the floor. 

When he regained consciousness, Mr. Bah was taken to the medicat unit ...He became 
incoherent and agitated, reports said, putting away from the doctor and grabbing at the 
unit staff. Physicians consutted later by The Times catted this a textbook symptom of 
intracraniat bleeding, but apparently no one recognized that at the time. 

He was handcuffed and placed in leg restraints on the floor with medical approval, "to 
prevent injury, " a guard reported. "While on the floor the detainee began to yell in a 
foreign language and turn from side to side, ” the guard wrote, and the medical staff 
deemed that "the screaming and resisting is behmnor problems. ” 

Mr. Bah n av ordered to calm down. Instead, he kept crying out, then "began to 
regurgitate on the floor of medical, ” the re[mrl said So Mr. Bah vras' written up for 
disobeying orders. And with the approval of a physician assistant, Michael Chuley, who 
wrote that Mr. Bah ’sfall was unwitnessed and "questionable, " the tailor was taken in 
.shackles to a .solitary confinement cell with instructions that he he monitored. 


^ Eric Tucker, Chinese Detainee ’s Widow’ Wants Government Kept in l.aw.snit, Boston Globe, Nov. 12, 2009, 
available at: 

hllp;''Av\vvv.boslon-corn/ne\V5i/locai/fhode_islaiid/arlides/2<)<)9/l 1/12/chii‘iese_delaniees_\vidovv_\vaTils_gcvennne!!l_ 
kepl in lavvsLiiL'; Nick Miroff, ICK hacility Detainee’s Death Stirs Questions, Washinglon Post, Jan. 30, 2009, 
available ai ht^p;//w\vw.waslllIlgtonpost.com/^^’p-d>^l/coI^tcnt'stor^^^2009/01/3 i/ST2009013 10 lS77.htiiii; Nina 
Bcmstciii, U S. Agency Issues Scathing Report on Death of Immigranl in its Custody. New York Times, Jan. 16, 
2009. available at iittp:/A%^'T,v.nYtmics.coni/2009/01/16/world/'amciicas/16iht -detain. 1. 19422767. htinl 
'' Id. 

Nina Bemslein, "Few Details on Immigranls Who Died in Custody”, New York Times, May 5, 2008. 



56 


Under detention protocols, an officer videotaped Mr. Bah as he Jay vomiting in 
the medical unit, hnt the camera 's battery failed, guards wrote, when they tried to tape 
his trip to cell No. 7. 

Inside the cell, a supervisor removedMr. Bah 's restraints. He was unresponsive 
to questions asked by the Public Health Service officer on duty, a report said, adding: 
“The detainee sat up in his bed and moan and he fell to his left side and hit his head on 
the bed rail ’’ 

The watching began. As guards checked hourly, Mr. Bah appeared to be 

asleep on the concrete floor, snoring. But he could not be roused to eat lunch or dinner, 
and at 7:10 p.m., “he began to breathe heavily and started foaming slightly at the 
mouth, ” a guard wrote. “I notified medical at this time. " 

However, the nurse on duly rejected the guard’s request to come check, ...at 8 p.m., when 
the warden went to the medical unit to de.scrihe Mr. Hah 's condition, the nurse, Raymund 
Dela Pena, n as' not alarmed. “Detainee is likely exhibiting the same behavior as earlier 
in the day, ” he wrote, adding that Mr. Bah would gel a mental health exam in the 
morning. 

About 10:30 p.m., more than 14 hours after Mr. Bah's fall, the same nurse, on 
rounds, recognized the gravity of his condition: “unresponsive on the floor incontinent 
with foamy brown vomitus noted around mouth. ” Smelling salts were tried. Mr. Bah was 
carried back to the medical unit on a stretcher. 

.lust before II, someone at the jail called 91 1. 

When an ambulance left Mr. Bah at the hospital, brain scans showed he had a 
fractured skull and hemorrhages at all sides of his swelling brain. He was rushed to 
surgery, and the detention center was informed of the findings. 

But in a report to their supervisors the next day, immigration officials at the 
center described Mr. Bah ’s ailment as “brain aneurysms ” — a diagnosis they corrected 
a week later to “hemorrhages, ” without mentioning the skull fracture. After Mr. Bah 's 
death, they wrote that his hospitalization H’ar.v “subsequent to a fall in the shower. " 

Reforms: 

ICE medical policies for detainees have been generally limited to treating emergencies that are 
“threatening to life, limb, hearing or sight.”^* This has led to countless cases in which needed 


Niivr Bernstein. 'Tew Details on Iinniigrants Who Died in Custodr^”, New' York Times, May 5, 2008. 

Division of Inimigralion Health Serv ices, DlIIS Medical llcntal Detainee Covered Services Package, Sept. 19, 
2007. 



57 


medical services are denied because life-threatening consequences are not considered imminent. 
When questioned about this policy, an ICE spokesperson explained, “We are in the deportation 
business. . . . Obviously, our goal is to remove individuals ordered to be removed from our 
country. ... We address their health care issues to make sure they are medically able to travel 
and medically able to return to their country.”^^ Experts in penal detention systems have clearly 
articulated that this standard would be unquestionably unacceptable even in the Bureau of 
Prisons system. 

The 2011 PBNDS eliminate some of these restrictions and allow on-site medical personnel to 
provide basic care to detainees without bureaucratic pre-approval from Washington, D.C. 

Medical providers will now have greater authority to provide medically necessary treatment. 

This is more in line with medical service provision for incarcerated populations and ensures not 
only improved services, but a more cost effective and efficient system for everyone involved. 
This is the very minimum of what experts have recommended and is consistent with mles that 
apply to the incarcerated population. 

Women’s Medical Standards 

Women comprise approximately 10% of the population detained by ICE. Current standards — the 
2008 PBNDS and the National Detention Standards — for women’s needs fall well below those in 
our federal prison system. Routine women’s medical needs, such as gynecological, reproductive, 
and obstetric health needs, including routine age- and gender-appropriate reproductive system 
evaluations, pelvic and breast examinations, Pap smear and STl tests, and mammograms, are 
considered non-emergency and are very difficult or impossible to obtain even where medically 
and urgently necessary. Pregnant women are routinely denied appropriate pre-natal care, or are 
released in unsafe conditions, late in their pregnancy, late at night, in remote areas. They are 
routinely shackled during their pregnancy, and even on occasion during labor and recovery. 

Ectopic Pregnancy: 

On December 1 8, 2003, a woman at the Broward Transitional Center (BTC) in Broward County, 
Florida, requested assistance from the medical staff for symptoms of severe abdominal pain and 
a missed period. Although she had the classic symptoms of an ectopic pregnancy, a painful and 
potentially fatal condition, her concerns were ignored. On several occasions, she was simply 
given Tylenol and told her pain was normal. When she began to bleed profusely, the medical 
staff still did not take her complaints seriously. Two and a half weeks later, when she was finally 
seen by a doctor, she was immediately taken to a hospital for surgery, resulting in both the loss 
of her unborn child and the removal of her fallopian tube.^^ 


Caitlin Webber, ICE Officials ' Testimony on Detainee Medical Care Called into Question^ Coi^ressioiial 
Quarterly. June 16. 2008. 

FIAC and the Women’s Conmiission for Refugee Women and Children wrote DHS to request an 
investigation into this case and another case iiwolving a pregnant woman at BTC. An investigation was 
conducted, but FIAC was advised that the results could not be forwarded. 



58 


I was told thal this wa5 not uncommon. Also that several other •women missed 
their period for Mo or three months due to stress and not to worry about it. At that visit, I 
M'as given about 20 packets qfibuprofenfor the pain. ...By .January 1, 2004 the pain w-as 
getting much worse ...I was in too much pain. After being told again that this was due to 
stress I was given Tylenol and Ibuprofen and asked to go back to bed. When I went to bed 
the pain was so bad that I was moaning and the officers came. They went downstairs to 
get a nurse but no one is in the clinic at night. The officers thought it might be a stomach 
problem so they gave me antacid and soda . . . When I woke up there was blood 
everywhere. I was bleeding heavily. The officers wrote the request for me to go to the 
clinic that morning, on .lanuary 2, 2004. 

I was given more Tylenol and Ibuprofen and asked to go back to bed again. I 
insisied that it n'av not normal for me not to get my period and was finally given a 
pregnancy test. 'The lest revealed that I was pregnant... But the pain continued to gel 
wor.se and I kept bleeding. On January 3, 2004. I went to the clinic again... They kept 
giving me more Tylenol and Ibuprofen and .sending me hack to bed. ... On January 4, 

2004 the pain hyk severe. My roommate ... heljied me gel to the clinic, ihey [clinic 
employees] wanted to send me hack to my room again hut my roommate said no. She told 
them how much I vi'a.v suffering and .said .she would not take me back to my room in thal 
condition. 

Finally, ihey brought me back to a room with a table in the clinic and told me to 
lie down on the table. A male doctor was there. I was in so much pain I was screaming. 
All he did was touch my stomach and then he said they had to take me to the emergency 
room immediately. They took me out in a wheelchair. I was taken to the Broward Medical 
Center and was told by the Doctor there that it was too late and they needed to operate 
because I had an infection. He said it was an ectopic pregnancy. 

I had surgery on .January 5, 2004. 1 was told afterwards that one of my tubes had to be 
removed. I was devastated by the news because not only had I lost the baby but also 
because now it would be much more difficult for me to have a baby ....I spent three dcxyis 
at the hospital and all the lime that I h’cis' there, even though there was a phone in my 
room, the guard that stayed with me did not allow me to use the phone to contact my 
relatives and let them know what had happened... I vcav not able to gel any special visit 
with my family either.... I will never he able to forget all that I went through since I ’ve 
been here.~^ 

Miscarriatie: 

Another female detainee who miscarried while in immigration custody at the Turner Gilbert 

Knight (TGK) facility in Florida described her failed efforts to get medical attention: 


Slalemenl of Haitian woman at the Broward Transitional Center (Febniar}' 4, 2004). See also letter from 
Kerline Phelizor (April 27. 2003). 



59 


"When Im'os brought to this jail facility I was placed in the intake holding cell 
The room I Mas locked in for hours had feces smeared on the walls and floor. I thought 
M 'ell maybe it w- as just that room, however, I was moved to another one and that too had 
feces smeared on the walls and the rooms where absolutely filthy disgusting. ...I was six 
weeks pregnant when I came into this place. 

I have been so distraught about the physical conditions and cleanliness of this 
place. On 7/12/04 1 put in a written request to see the facility psychiatrist as I felt these 
above conditions were not viable to my pregnancy. I wanted to document the stress this 
facility is causing me. My written request went ipiored and on 7/15/04 1 miscarried. I 
was taken to .Jackson Memorial Hospital in shackles and handcuffs. I sat in the waiting 
room amongst other pregnant women who wore looks of concern sitting next to what 
looked like a criminal. I hyk wearing bright orange jail uniform and in shackles and 
handcuffs with two guards at all times. I waited for three hours at which point 1 started to 
visibly hemorrhage and only at this point did the medical staff attend to me. I hyk 
supposed to go back to the ho.spital for a follow up, hoMever I was not going back 
through that humiliation and violation of my human rights unle.ss my life depended on it. 
To date my reque.st to see the facility psychiatrist has still gone ignored and t have been 
unable to tell anyone of the upset and emotional stress 1 have gone through losing my 
child in a place like this. This jail is not set up to handle real medical emergencies. 

ice’s detention reform efforts have included much-needed improvements to the provision on 
medical care to detainees. The 2011 PBNDS provide clear and concrete guidelines to protect 
detainees, detention officials, and the agency from the dangers all were subject to prior to the 
development of these standards. These are not extreme services but the most basic medical 
services called for in responsible medicine. They include basic provisions for care that must be 
made available where medically advised and are consistent with, not more generous than, what is 
available in the federal prison system and by law. These include appropriate access to pre-natal 
care and gynecological services. The new standards institute sensible restrictions on the use of 
shackles on women during childbirth, and provide instructions for how to use them in the rare 
cases where they are considered necessary.^® These guidelines are long overdue. 

Letter from detainee to FIAC, July 28, 2004. 

See Villegas v. Metropolitan Govermnent of Davidson County, 2011 WL 1601480, *24 (M.D. TN 2011) (holding 
tliat the ''sliackhng of a pregnant detainee in the final stages of labor sliortly before birth and durii^ tlie post-partum 
recovety violates the Eighth Amendment's standard of conteniporaiy' decency"); see also Nelson v. Correctional 
Medical Services, 583 F.3d 522, 533 (8th Cir. 2009) (denying summary' judgment for officer because sliaclding 
pregnant prisoner during labor clearly establislied as a violation of the Eighth Amendment); Women Prisoners of 
D C. V. District of Columbia. 93 F.3d 910. 918, 936 (D.C. Cir. 1996) (recognizing that correctional authorities 
cannot use “restraints on any woman in labor, during delivery, or in recovery’ immediately after dehvery'" and noting 
prison did not cliallenge district court's finding tliat “use of physical restraints on pregnant women . . . violatefs] tlie 
Eighth Amendmenf ); Brawley v. State of Washington, 712 F.Supp.2d 1208, 1221 (W.D. Wash 2010) (denying 
summary' judgment because shackling a prisoner in labor clearly established as a violation of tlie Eighth 
Amendment). 



60 


Sexual Assault 

Sexual assaults In custody are a major concern of the Women’s Refugee Commission.^’ They 
occur during intake, during detention, and even during transport and removal. While immigration 
detention authorities have for decades insisted that sexual assaults are not common and are 
adequately addressed, evidence continues to indicate otherwise.’* 

Sexual assault in detention : 

In 2000, the Women’s Refugee Commission issued a report documenting widespread sexual, 
physical and emotional abuse of detainees held at the Krome Service Processing Center in 
Miami.” Over 15 officers were involved in sexual assaults varying from rape to fondling. The 
ensuing scandal led to the transfer of all women out of the Krome facility, but little or nothing 
was done to correct the systemic issues that led to the situation. 

Tn 2009, an officer pled guilty to entering the rooms of women being held in isolation at the Port 
Isabel detention facility in Texas, and ordering them to strip so that he could fondle them. On 
Aug. 4, 20 1 1 , a guard pleaded guilty to forcing a female immigration detainee at the Willacy 
detention center in Texas into a guard bathroom and having intercourse with her. Although the 
detainee immediately complained, internal e-mails show that officials did not put the guard on 
leave until eight months later.*' 

Sexual assault during transport: 

Sexual assault during transport to and from appointments, during transfer, or even release has 
been well documented. The Women’s Refugee Commission and Americans for Immigrant 
Justice*’ have made repeated requests to ICE to implement policies to prevent the risk of sexual 
assault during transport. In 2003, an ICE agent was charged criminally with raping a female 
detainee prior to returning her to the facility after her medical appointment.** In 2007, another 
ICE agent was charged with raping a female detainee during transport from one facility to 


Women's Coiimiissioii for Refugee Women and Cliildrcn, 'Iiuiocciits in Jail: INS Moves Refugee 
Women From Krome To Turner Guilford Knight Correctional Center, Miami,” June 2001 (follow-up Report 
to “Beliind Locked Doors: Abuse of Refugee Women at the Kroine Detention Center,” October 2000. 

Human Rights Watclr Detained and At Risk, August 2010, a\'ailable at: 
www.lmv.org/sites/default/files/repoits/us08 lOwebwcovei-Pflf 
Women's Coimnission for Refugee Women and Cliildrcn, Behind Closed Doors: Abuse of Refugee Women al the 
Krome Detention Center, Oct. 2000, al http.7/woniensiefii£CCCommission.org./piess-ioom/'557-sexiiaj-abuse- 
widesprcad-nt-krome-detention-center-miami-refugee-w'omen-and-inimigrants-subiected-to- 
Mai>' Flood, Ex-Prison Guard Admits to Fondling Immigrant Women, Houston Clironicle. Sept. 24, 2009. 
available at littp :/7www.cluoii.coin.7iew's/}iousto.a-texaa'''articleyEx-prison-guard-admits-to-fondlmg-immig:mnt- 
w'omeii-l722996.php 

http // WWW, just ice. gov/opn/pr./2011/Aiigust/H-cit-1016.html 
Formerly Florida Inunigrant Advocacy Center 

Immigration Officer Accused Of Raping Detainee, KHBS, Sept. 24. 2003, at 
http:/ 7 spr.igc-org/en/ne'ws/200 3/ 0924- 3 . h .tml. 




61 


another.^"' He later pled guilty to federal sexual battery charges in order to avoid a charge of 
aggravated sexual assault/' Last fall, the American Civil Liberties Union filed a class action 
lawsuit against ICE alleging that one of its contract guards sexually assaulted at least nine female 
detainees during transportation from the Hutto Detention Center in Texas. State and federal 
criminal charges also have been filed.^’’ 

2011 PBNDS : 

On our visits to detention facilities over the past 15 years we have consistently heard conflicting 
understandings of the governing policy regarding reporting and response to sexual assaults, what 
constitutes a sexual assault - with some facilities informing us that sexual assault requires 
penetration and that only confirmed penetration cases are reported to ICE - and varying 
procedures to avoid or prevent assault. The Women’s Refugee Commission has long advocated 
for the full implementation of Prison Rape Elimination Act (PREA) standards in DHS facilities. 
The PREA standards are the result of bipartisan concern over the prevalence of prison rape in 
confinement. Representatives Frank Wolf (R-Va.) and Bobby Scott (D-Va.) wrote DHS 
Secretary Janet Napolitano in December of 201 1 , urging her to support the new PREA 
regulations and stating that the law’s original intent was to include immigrant detainees under the 
statute’s protections. 

While the 2011 Standards do not go far enough to fully implement PREA, they are a step in the 
right direction toward preventing and responding to rape in custody. The new 2011 Standards 
provide many but not all of the provisions set forth in PREA.” The 201 1 PBNDS provide for 
numerous protections and response mechanisms, including special consideration for factors that 
could lead to victimization and assault, a written policy of zero tolerance for all forms of sexual 
assault, a coordinated, multidisciplinary team approach to responding to sexual abuse, written 
procedures for internal administrative investigations, and a requirement that victims shall be 
provided emergency medical and mental health services and ongoing care. 

The new standards also incorporate recommendations for basic protections against assault during 
transport by prohibiting that a individual officer transport an individual detainee of the opposite 
gender, and also provide restrictions and guidelines for performing strip searches. 

To imply that these very basic protections are a “holiday” or an undue burden on the agency is 
simply wrong. They are basic standards of decency that provide what should be the minimum 

Jay Weaver, Ex-ICE agent: I had sex with immigration detainee, Miami Herald, Apr. 4. 2008, at 
hi tn:ydeTeiitioffiv.atclmetwork.orUnode/808 . 

” Id. 

Doe V. Neveleff, No. l:ll-cv-907 (E.D. Tex., Oct. 19, 2011); Julia Flip, Sexnal Abuse Continues in Immigration 
Jails. Courthouse News serr'ice, October 24, 2011, available at; 
http;//w'w'w'.courthousenews.coni/20 11/10/2 4/40857.1itm 

^ Lovisa Stamiow, lllten Good is Not Good Enough. HuElington Post, March 6. 2012, available at: 
http',//iustdeteiition.org/eiyidiirews/20 12/03 06 12.aspx 



62 


response to any assault or rape. To refer to these critical protections and guidelines for enforcing 
rule of law as “perks” is absurd. In fact, the 2011 PBNDS do not go far enough in protecting 
detainees from sexual assault and should be expanded to implement the full intent of PREA, 
including clear mechanisms for detainees and third parties to report abuse, provisions for 
confidential staff reporting, agreements with outside public entities and community service 
providers, appropriate training, audits and oversight. Denying the need for these protections not 
only puts detainees at risk, it exposes the agency to further scandal and liability. 

Family Separation and Parental Rights 

Thousands of parents are detained by ICE, leaving behind thousands of children. Many of these 
children end up in the child welfare system at taxpayer expense. In some cases, parental rights 
are tenninated by the state, not because a parent intends to abandon their child, or due to abuse or 
neglect, but simply because a parent in immigration detention is unable to attend a family court 
hearing.^® 

PBNDS 201 I contains new language permitting detainees to make escorted trips to attend 
family-related state court proceedings, at the discretion of an ICE Deportation Officer and at the 
expense of the detainee. These are minimal protections that do not burden the system and in fact 
provide a mechanism that will facilitate coordination between federal and state stakeholders, 
ease the burden on state foster care systems, and save taxpayers money, while also protecting the 
due process rights of parents and U.S. citizen children. 

Reform 

ICE has responded to the numerous findings of abuse within their system by implementing 
reforms designed to operate a detention system with policies, facilities, programs, and oversight 
mechanisms that align with the administrative purpose of Immigration Detention.®'^ 

Revising existing detention standards is not only necessary for the safety of detainees, it is a 
significant opportunity for ICE to create a more efficient and effective system of enforcement. 

In addition to the improvements made to its standards, ICE has developed an online detainee 
locator system so that individuals detained by ICE can be located by family members and 
attorneys; has hired Detention Services Managers, whose responsibility is to ensure appropriate 
conditions exist at detention facilities; developed a risk classification assessment to assist in 
determining both whether detention is necessary and the most appropriate placement (not yet 


Women's Refugee Conunissioii Torn Apart By Immigration Enjbrcement: Parental Rights and Immigration 
Detention, December 2010. Available at: h t tp:/7^'^vv.womensrefugeeco oi m t5sioii-org/r eso iirces/doc_ ciowii]oad''667- 
loin-apart'bv-mmiijn'alion-^nrorceineiit-gareti^-ri^his-and-irnmigralion-delenhori 
See ICE Press Releases at littp:/'H'vvw.icc.gov/pi/W0910/091020bostoiiJitin and 
htfp:/7www.ice-gov/pi/nr/0911'091123pbiiadelphia2.l3tm 



63 


implemented); improved transparency by increasing access to facilities and detainees for 
visitation and monitoring purposes; and improved medical procedures and eliminated obstacles 
to medical care. 

While the 2011 PBNDS provide for important improvements to current conditions, they are not 
enough. They continue to rely heavily on penal standards that were designed for a criminal 
population and do not take into account that detainees in ICE custody are there on the basis of 
civil violations only and are not serving criminal sentences or awaiting criminal proceedings. 

The improvements merely bring ICE detention standards closer to a minimum level of 
compliance with legal obligations of a civil detention system. 

Tt is critical to note that any actual improvement in conditions will depend on the implementation 
of these announced refonns and the enforcement of adequate standards. These standards must be 
mandatory at all facilities with sufficient oversight to produce consistent and humane treatment 
of detainees. Violations must trigger appropriate and enforceable sanctions. 

Within this context, NGOs have welcomed the administration’s announcements of reform. It is 
ICE’S responsibility to ensure the adequacy of medical care, protections from assault and rape, 
access to attorneys, and other basic care are provided to its detainees, regardless of where they 
are housed, because it is ICE that holds them prisoner. ICE has in the past abdicated this 
responsibility by failing to oversee the provision of such care. 

The 2011 PBNDS are a bare minimum for the operation and oversight of ICE’ s vast network of 
confinement and custody. Though a start, they will only become meaningful if the agency 
continues to implement and institutionalize the reforms recommended by Dr. Schriro’s report 
and commits to creating a civil system of detention that is used as a last resort and not modeled 
on the criminal incarceration system. This includes implementing effective tools for detaining 
only where appropriate and necessary; ending the use of all jail and jail-like facilities for 
immigration detention; screening apprehended immigrants to inform care, needs and custody 
restrictions; ensuring functional and meaningful oversight and monitoring of detention 
operations, performance and outcomes; and imposing sanctions on facilities that violate ICE’s 
standards. 


Mr. King. Thank you, Ms. Brane. And I appreciate all your testi- 
mony, and I recognize myself for 5 minutes. 

And I would turn first to a remark or comment that I heard 
made by the gentleman from Puerto Rico in his opening remarks, 
Mr. Pierluisi, where he said that 110 have died in detention ICE 
custody since 2003, I believe the number was. And so, I would ask 
Mr. Landy, do you have a sense of — I understand that there are in- 



64 


dividual cases here that does assuage anybody’s grief when it is 
personal, and it is personal to every family. But from a statistical 
standpoint, do you have a sense of whether it is safer or more dan- 
gerous to be in ICE detention than it is in the broader society of 
America? 

Mr. Landy. With respect to detention deaths, first of all, in 2004, 
there were 28 deaths in immigration detention. During so far in 
this Fiscal Year, there have been 6 detention deaths. And in the 
previous Fiscal Year, there were 8. 

ICE has been working very hard to improve medical care, to ad- 
dress the concerns that have been raised thus far. 

Mr. King. I understand that, Mr. Landy, and I appreciate your 
statements with regard to that. But data wise, my question was, 
is it safer to be in ICE detention as compared to in the broader so- 
ciety of America, or is it more dangerous to be in ICE detention 
from a fatality standpoint? And you have about 33,000 people at 
any snapshot given day incarcerated. So, have you given any sense 
to that whether when they go inside your doors they are safer than 
they were outside the doors? 

Mr. Landy. Safer 

Mr. King. Less likely to die. 

Mr. Landy. I myself have not done a statistical analysis. 

Mr. King. Okay. Let me help you out then. I just did a little 
math here when I heard the statement made from Mr. Pierluisi, 
and I thought, what does that mean, 110,000 deaths since 2003? 
So, I just did a little math and roughly 9 years, and you shake this 
out, it comes down to about 1 out of every 2,500 people. And if you 
figure the 33,000 annual, about 1 out of every 2,500 would die in 
ICE custody. That is the data that Mr. Pierluisi gave us if you are 
accepting the 33,000 number. If you look at the broader society of 
America, about 2.4 million people die in America every year out of 
a 313 million population. So, that would be .767 percent, which 
happens to be 1 out of every 28 and a half — 1 out of every 128.5 
people statistically die in America. 

So, just think of a town of 128 people. Likely 1 of them will pass 
away in a given year. So, that means that it is 20 times safer sta- 
tistically to be in your ICE facility, and I would just point that out 
because not that there are not any problems. I would not take that 
position. But statistically, 110 deaths over that period of time is 
not alarming to me. 

Mr. Landy. May I respond to that, Vice-Chairman? 

Mr. King. Please. 

Mr. Landy. In the general public, typically people who pass away 
do so at an advanced age. Our population on average is much 
younger. There are people who, in our general public, would be con- 
sidered healthy, young adult males at that age primarily. We do 
not have very many elderly people in our custody. 

Mr. King. Okay. Thank you for that analysis, Mr. Landy, and I 
would just suggest, though, that you take a look then, and it is 
going to be a question I will ask you on the record today, and we 
want to follow up with a response to it. I will ask you do a statis- 
tical analysis of the universe that you have described in the broad- 
er society versus that of the ICE facilities, and I think that would 



65 


be instructive for this panel to know, because it has been part of 
the discussion that has taken place. 

And then I would turn to — thank you. And I would turn to Mr. 
Crane and ask you if you would have any comments you would like 
to make after you have heard the testimony from Ms. Brand. 

Mr. Crane. A lot of things run things went through my mind 
during the testimony today regarding the deaths. And I think the 
first thing that I would say is that the people that made these hap- 
pen were bad players. And no number of rules or regulations that 
we make will get rid of bad players. They are going to do bad 
things if they are not supervised 100 percent of the time. And I 
think that is one of our biggest issues with the performance-based 
detention standards is that we really feel that they have kind of 
been off the mark starting in 2009. We said that the agency needed 
more oversight. We did not necessarily need more regulations per 
se and more rules. 

You know, providing people with opportunities to have more rec 
time during the day is not going to overcome this type of issue. But 
also, as law enforcement officers, well, at ICE specifically, first of 
all, we know that many of these facilities are local jails. 

Mr. King. Is it true that some of the inmates control the keys 
to their own cells? 

Mr. Crane. I am not aware of that. 

Mr. King. Okay, thank you. And I would just quickly turn to Ms. 
Vaughan then and ask you to flush out your comment that ICE 
looks for ways to release rather than to detain. 

Ms. Vaughan. Well, the policies now in place, the guidelines for 
ICE agents, ICE removal officers in particular, is to hold only those 
as a priority who have been convicted of a crime. And that policy 
overlooks the reality of our how our criminal justice system plays 
out in that many of these individuals are not going to be convicted 
unless they are held because they stand a chance of fleeing before 
their proceedings can occur, both their criminal proceedings and 
also their immigration proceedings. So, that is why that policy puts 
the rest of us at risk when people who are released back into the 
community have the opportunity to go on to commit other crimes. 

Mr. King. Thank you, Ms. Vaughan. 

The Chair would turn and recognize the gentlelady from Cali- 
fornia, Ranking Member Lofgren. 

Ms. Lofgren. Before asking my questions, I would like to ask 
unanimous consent to include in the record the following state- 
ments: a statement from Congresswoman Lucille Roybal-Allard; a 
statement from a Member of the full Committee, Congressman 
Jared Polis; a statement from Dora Schriro, the commissioner of 
the New York City Department of Corrections and the former spe- 
cial advisor to Secretary Napolitano; a statement from the Amer- 
ican Civil Liberties Union; from the Advocates for Human Rights; 
from the American Immigration Lawyers Association; from the Na- 
tional Immigration Forum; from Human Rights Watch; from 
Human Rights First; from the Lutheran Immigration and Refugee 
Service; from the National Latino Evangelical Coalition; the Na- 
tional Immigrant Justice Center; and Susanna Barciela, the Policy 
Director for Americans for Immigrant Justice. 



66 


Mr. King. Hearing no objections, so ordered.* 

Ms. Lofgren. Thank you, Mr. Chairman. 

You know, there have been a lot of statements made, and we 
only have 5 minutes, so it is not possible to spend all the time nec- 
essary to correct various things that were said that were incorrect. 
But I do think it is important to take a look at the facility that has 
been described as kind of a country club, I guess. 

We have a couple of pictures, because I think pictures are worth 
more than a few words. This is, to me, again, there are bunks. It 
does not look my idea of a plush holiday locale. I mean, this is the 
new center that has been built. And by the way, several Members 
have said that this was a $30 million building at taxpayers’ ex- 
pense. It was actually $32 million, but it was not built at tax- 
payers’ expense. It was built by Geo Group, a private for-profit 
prison company, and they are paid per bed about half of what we 
pay for other facilities. 

If we could show the next picture. This is the plush recreation 
yard. You can see the very large fence in back, a rather grim recre- 
ation area. It is not where really I would plan to spend my holiday. 
It is not what I would consider a holiday on ice. And the third and 
final picture, this is the showers, as you can see. No curtains. Not 
exactly what I would consider a plush environment. 

You know, I think it is very easy to pick on the most vulnerable 
people, and I think that is some of what is going on here today. 
You know, I heard Ms. Vaughan say that these standards, these 
new detention standards, just go too far. I think that was the exact 
words she said. And I am just sort of wondering, you know, Ms. 
Vaughan, you have studied this. Is it too far to not shackle women 
as they give birth? Do you think that is something that really pro- 
tects the American people? Or if you have a mental illness, would 
it go too far to say, do not put that person in segregation because 
we have seen that some of those mentally ill people if they are seg- 
regated without any care, they have committed suicide while in 
custody? Or how about this: the guidelines prohibit the male 
guards from strip searching the female detainees. Do you think 
that really goes too far to say that the male ICE officers should not 
strip search the women detainees? 

Or how about this: Frontline did a big expose of sexual assault 
in the ICE system. And one of the things they pointed out was 
that — and I am not saying this is all ICE officers, Mr. Crane, but 
certainly there have been multiple instances where officers, some 
employees of the Federal Government, some by contract, have 
taken a detainee by themselves and then assaulted them. And now 
under these guidelines, if you are an ICE officer or a contract offi- 
cer, you cannot take for a ride the female detainees, and take her 
and rape her or abuse her. 

Do you think those things really go too far? 

Ms. Brane. Well, we really think that those are all obviously the 
very minimum of what one would expect in a civil detention facil- 
ity. As I have said, the objective and the authority of ICE is not 
to detain punitively; it is to detain pending processing a hearing 


*The information referred to is available in the Appendix. 



67 


and removal. And in that context, ICE absolutely has a duty to pro- 
tect and provide minimum care to the people in their custody. 

The new standards, I think, provide really minimum basic pro- 
tections and provisions for preventing some of the horror stories we 
heard today. Of course I think that Mr. Crane is absolutely right, 
that oversight in implementation of these standards is critical. We 
have seen that they have not necessarily implemented them. 

Ms. Lofgren. Let me ask Mr. Landy, and maybe it is not fair 
to ask you because we asked the Secretary of the Department, and 
she has not really given us a definitive answer. But we had a bi- 
partisan effort here in the Congress to do something called the 
Rape Prevention Act. And it was Congress Wolf from Virginia and 
Congressman Scott from Virginia came together and a whole series 
of procedures to prevent rape of people that are in our custody. 
Many of us believe that that bipartisan law should also be applied 
to the immigration detention that is now the law in the Bureau of 
Prisons. 

Would you not think it would be a good idea to be against rape 
in these detention facilities and to adopt some of those standards 
mandatorily? 

Mr. Landy. Director Morton has recently testified there is no 
daylight between PREA and where we want to be as an agency. 
The Prison Rape Elimination Act establishes general principles to 
try to prevent sexual assault entirely, and, if it should occur, to re- 
spond appropriately and to investigate thoroughly. That is exactly 
what this agency does. 

We promulgated in our 2011 standards far stronger protections, 
although the 2008 standards did that as well. We intend to aggres- 
sively follow up on any allegation of sexual assault, as well as pre- 
vent it, to the maximum extent possible. 

Ms. Lofgren. I see my time has expired, Mr. Chairman. 

Mr. King. I thank the gentlelady, and I recognize the gentleman 
from South Carolina, Mr. Gowdy. 

Mr. Gowdy. Thank you, Mr. Chairman. 

Mr. Landy, what percentage of aliens are released on bond? 

Mr. Landy. We can get back to you on that. 

Mr. Gowdy. Just give me a round number. I am not going to 
hold you to it. Just generally. 

Mr. Landy. I cannot give you that number, but I will say that 
anyone convicted of a serious crime is required by law to be de- 
tained. So, anyone who is released on bond 

Mr. Gowdy. That actually was not my question. My question is, 
in the full universe of aliens, what percentage of them are given 
bond? 

Mr. Landy. We will have to get back to you for an exact number. 

Mr. Gowdy. What kind of flight assessment do you do before you 
determine the terms and conditions of the bond? 

Mr. Landy. ICE officers do a very careful assessment of the indi- 
vidual’s criminal history and other aspects of that person’s back- 
ground. 

Mr. Gowdy. Well, if it is that careful, can you tell me the per- 
centage who actually abscond or fail to appear? 

Mr. Landy. We will have to get back to you on that precise num- 
ber. I should say that is not 



68 


Mr. Gowdy. Well, I see the number 40 percent in my paperwork. 
Would you disagree with that number, that 40 percent of aliens 
who are issued bonds abscond or fail to appear? 

Mr. Landy. I do not know that that is correct. And, in fact 

Mr. Gowdy. If it were 40 percent, would you agree that you prob- 
ably ought to rework your flight assessments or retrain the people 
who are actually deciding whether or not grant bond? 

Mr. Landy. I should emphasize that my office does not work on 
these operational issues as to how people who are reviewed are re- 
leased on bond. But I will say that 

Mr. Gowdy. Well, that is fine. You are the most knowledgeable 
person I can ask today about that. 

Mr. Landy. Which is why I will tell you that ICE officers, pursu- 
ant to the agency’s policy, very carefully consider all relevant fac- 
tors, and only would release someone who is not convicted of a seri- 
ous crime, in which case detention is mandatory by law. 

Mr. Gowdy. Well, I understand that, but, I mean, there are other 
ways to do threat assessments other than — I mean, a prior convic- 
tion for a serious violent offense would be a really good indicator 
that that person was a danger to the community. So, I am not 
going to give them any credit for detaining people who have suf- 
fered prior serious violent convictions. 

Mr. Landy. Our agency’s enforcement priorities extend far be- 
yond that one criteria. First of all 

Mr. Gowdy. Has bond ever been reissued for an alien, absconded, 
failed to appear, arrested for the failure to appear, and then a bond 
then reissued? 

Mr. Landy. The absconding from a final order of removal is one 
of the very high priorities that are included in the agency’s initia- 
tive. So, if somebody had absconded from a final order of removal, 
it would be highly likely that that detention would occur in those 
instances. 

Mr. Gowdy. And the detention would be indefinite, right? 

Mr. Landy. Excuse me? 

Mr. Gowdy. Would the detention be indefinite? 

Mr. Landy. Detention would be until that person’s removal could 
be effectuated. 

Mr. Gowdy. Well, what if they come from a country that will not 
have them back? 

Mr. Landy. Under Supreme Court decision, Zadvydas, ICE is re- 
quired by law to release people after 

Mr. Gowdy. So, they are right back where we started, right? 

Mr. Landy. The agency is required by law to release those people 
pursuant to the Supreme Court decision. 

Mr. Gowdy. I am familiar with the Supreme Court decision. I am 
also familiar that there have been people that have been held in 
State jails and prisons for upwards of 2 years awaiting a trial. 

Mr. Landy. Under the Supreme Court decision, people who can- 
not be removed or repatriated must be released within 180 days. 
We must abide by that law. 

Mr. Gowdy. Well, let me ask you about repatriation. Would you 
support legislation that would restrict visas or cut financial aid to 
countries that will not accept their citizens back? 



69 


Mr. Landy. I will have to get back to you on whether the Admin- 
istration has a position on that. 

Mr. Gowdy. Well, you have a position. I mean, do you not? 

Mr. Landy. I am here in my official capacity to testify on deten- 
tion policy, and my office does not work on that issue. 

Mr. Gowdy. Well, I think it is actually the law. I think the law 
is in place that there are visa restrictions for countries that will 
not accept their citizens back. We just do not ever enforce it. 

Mr. Landy. Well, I cannot speak to that. In fact, I am not even 
sure that that is within the agency’s mission. 

Mr. Gowdy. Did you consult with line ICE agents before these 
standards were promulgated? 

Mr. Landy. Yes, we did. We provided the draft version of the per- 
formance-based national detention standards to Council 118 leader- 
ship in March of 2010. 

Mr. Gowdy. Can you give me an example of something they 
asked you to include or asked you to take out that you did? 

Mr. Landy. Well, when we met with them in April of 2010, and 
then again when they were briefed in September of 2010, they 
never provided subsequent input as to what sorts of changes they 
would like to make, notwithstanding our request that they let us 
know our security concerns. 

Mr. Gowdy. Do you have any information on ICE agents who 
have been injured themselves by detainees? 

Mr. Landy. I know that it is exceptionally rare, but I do not have 
specific facts. 

Mr. Gowdy. What do you mean by exceptionally rare? 

Mr. Landy. Well, I personally review on a daily basis significant 
incident reports, and I also speak with ICE officers in the develop- 
ment of our initiatives. And I honestly do not recall an incident 

Mr. Gowdy. What about false allegations against ICE agents? 
Have you encountered any of those, or are those also extremely 
rare? 

Mr. Landy. Our office would not necessarily know about false al- 
legations against ICE officers since we are a policy office that de- 
velops detention initiatives in collaboration with our operational 
components. 

Mr. Gowdy. I see the red light is on, Mr. Chairman. 

Mr. King. I thank the gentleman from South Carolina, and rec- 
ognize the gentlelady from California, Ms. Waters. 

Ms. Waters. Thank you very much, Mr. Chairman, and Mem- 
bers. I have another Committee that is meeting and several other 
things going on, but I was so intrigued by this title, I thought I 
would come to see what it means. “Holiday on ICE.” Ms. Vaughan, 
do you know what that means? 

Ms. Vaughan. It is a reference to a film. I believe it means that 
it is a reference to the public perceptions of what some of the condi- 
tions may be in some of these facilities. 

Ms. Waters. I am not aware of it. I have not heard this kind of 
discussion. Could you describe to me what is meant by that? What 
conditions are you talking about? 

Ms. Vaughan. Well, I cannot speak to what went into the nam- 
ing of the hearing. I have seen some accounts in news media re- 



70 


ports, and I have also visited a facility myself So, I have a reason- 
able sense of what the conditions are. 

Ms. Waters. What did you see? 

Ms. Vaughan. Pardon me? 

Ms. Waters. What did you see when you visited a facility? 

Ms. Vaughan. What I saw was a surprisingly relaxed atmos- 
phere. This was a facility that ICE leased space in from a county 
detention center up in the northeast where the detainees had pret- 
ty free access within the facility and access to each other. They had 
meals that were brought in by a woman who cooked them in her 
home. What I saw, it was a pretty well-rounded meal of breaded 
chicken, mixed vegetables, and some mashed potatoes. They were 
on a first name basis with the officers who were in charge of secu- 
rity at the facility. Most of them actually we were told were re- 
questing to be housed in that facility rather than being sent to 
places that were closer to where their families were, I think be- 
cause it was smaller and a little bit different type of setting. 

They accepted their detention because they knew that they were 
in the country illegally, and they were awaiting their removal. 

Ms. Waters. Yeah, but they had no choice. They had been de- 
tained, is that right? 

Ms. Vaughan. Right. Oh, I am sure they would rather not be. 

Ms. Waters. They were not there voluntarily. 

Ms. Vaughan. No, but they also knew that the reason for their 
detention was because they were here in violation of U.S. law. 

Ms. Waters. Well, but I want to talk about the “Holiday on Ice” 
and the conditions that this title refers to. And so, you had people 
who were relaxed. That means they were not screaming, or crying, 
or running around, or fighting, or anything, but they were just or- 
dinarily calm people who happened to be detained. Is that correct? 

Ms. Vaughan. Well, most of them were in there for drug viola- 
tions. 

Ms. Waters. Could you describe to me what you think would be 
wrong with being relaxed and a little bit sane? Is something wrong 
with that? 

Ms. Vaughan. No, though this is a number of years before the 
new standards were put into place. 

Ms. Waters. They had access to each other. What do you mean, 
families, that the mother, the father, children could talk to each 
other? 

Ms. Vaughan. Well, they were able to have visitors. They 
seemed to appreciate our visit because the purpose of it was to get 
a sense of what the conditions were for them in detention. 

Ms. Waters. So, did you on your visit, did you determine that 
the conditions were luxurious and extravagant and a “Holiday on 
Ice,” or just kind of an ordinary thing with some woman who 
cooked some food and brought it in? It was not catered by a res- 
taurant. What was extraordinary or extravagant about these condi- 
tions? 

Ms. Vaughan. I was surprised actually that it was as relaxed as 
it was considering that the local officers may not have had good in- 
formation about who these people were or what all was in their 
background because this was before the era of secure communities 



71 


and biometrics-based background checks. So, I remember thinking 
that they were potentially at risk because it was so relaxed. 

Ms. Waters. But they did not demonstrate that they were vio- 
lent, or they were about to attack anybody, or that they were fight- 
ing. They did not demonstrate any of that. 

Ms. Vaughan. Not during our visit. 

Ms. Waters. You just thought that maybe they should have be- 
cause they had records of some kind, and you were just surprised 
that they were not violent, or fighting, or that kind of thing. 

But I guess the bottom line is you did not observe extravagance, 
did you? 

Ms. Vaughan. I would not call it extravagance, no. It was more 
kind of Mayberry-ish like atmosphere. 

Ms. Waters. So, you think that is too nice for a detainee. 

Ms. Vaughan. I would have left that up to the people who are 
in charge of running that facility. It seemed a little bit relaxed to 
me knowing what can happen. 

Ms. Waters. I know. You keep talking about it being relaxed, 
and I am not so sure what you are referring to. And what I am 
trying to find out is what this Holiday on ICE is because it implies 
that there is some kind of extravagance, and people want to be 
there. They are having a great time. They are having a vacation. 
But having just talked with you, I do not think that is the case. 

Let me ask Mr. Landy, if I may 

Mr. King. And as the gentlelady’s time has expired, we will allow 
that last question. 

Ms. Waters. Oh, thank you very much. 

I think everyone is interested in these facilities being safe and 
humane. Is that the mission? Is that the goal? You have to have 
these detainees until something happens. They are either deported 
or something happens. And are you trying to do anything more 
than safety and humaneness? 

Mr. Landy. It is essential that the detention facilities that we 
use be safe and humane, especially recognizing the fact that our 
population and the authority that we have is a civil detention au- 
thority, that we do not have the authority to punish people. 

Also the fact that there are non-criminals in our detention, that 
there are asylum seekers in our detention, and given the variety 
and diversity of our population, we do need to make sure that our 
policies and standards are appropriate for our population. 

Ms. Waters. Thank you very much. I yield back. 

Mr. King. Thank you. I thank the gentlelady from California. I 
thank the witnesses, Mr. Landy, Ms. Vaughan, Mr. Crane, and Ms. 
Brand, for your testimony. 

Ms. Lofgren. Mr. Chairman 

Mr. King. And without objection — yes, I would yield. 

Ms. Lofgren. Could I ask unanimous consent to place in the 
record also the pictures that we displayed of the new facility? 

Mr. King. Hearing no objection, so ordered.** 

Mr. King. Again, I thank the witnesses for your testimony today. 
And without objection, all Members will have 5 legislative days to 
submit to the Chair additional written questions for the witnesses. 


**The information referred to is available in the Appendix. 



72 


which we will forward to ask the witnesses to respond as promptly 
as they can so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 
submit any additional materials for inclusion in the record. 

And with that, again, I thank the witnesses. And this hearing is 
adjourned. 

[Whereupon, at 3:57 p.m., the Subcommittee was adjourned.] 



APPENDIX 


Material Submitted for the Hearing Record 


( 73 ) 



74 


Statement of Ranking Member John Conyers, Jr. 

Subcommittee on Immigration Policy and Enforcement 
Hearing on: “Holiday on ICE: The U.S. Department of Homeland 
Security’s New Immigration Detention Standards” 

Wednesday, March 28, 2012, at 1:30 p.m. 

Five years ago, this Subcommittee held two hearings to 
talk about the medical care being provided in our immigration 
detention facilities. We wanted to understand why so many 
preventable deaths were taking place. 

One of our witnesses was Edwidge Danticat, a renowned 
author and the niece of Reverend Joseph Nosius Dantica. Rev. 
Dantica was a courageous man from Port-au-Prince, Haiti, who 
served his community for 50 years. But after gang members 
stormed his house and threatened his life, he fled Haiti at the 
age of 8 1 . 

Using his valid passport and visa, he sought safety in the 
United States, a country he regularly visited. But when he 
arrived at the airport and asked for political asylum, he was 
arrested, detained, and denied his heart and prostate 
medications. 

As his niece told us in that hearing five years ago, one 
morning while in detention Rev. Dantica had a seizure and 


1 



75 


began to vomit. She said, “[vjomit shot out of his mouth, his 
nose, as well as the tracheotomy hole he had in his neck as a 
result of [his] throat cancer operation.” Despite this, it took 
fifteen minutes to get medical attention and when the medic 
arrived, he accused Rev. Dantica of faking his illness. He died 
not long thereafter. 

I ask that we include in the record Ms. Danticat’s op-ed 
published in this morning’s New York Times. It is titled: 
“Detention Is No Holiday.” 

After those two hearings, I said I was “beyond shock.” 

The stories of medical neglect and abuse taking place right 
under our nose seemed like they couldn’t possibly be 
happening in America. But they were. 

• We heard from doctors who told us where the system was 
falling short. 

• We heard from family members of people who died in our 
custody. 

• We heard from lawyers who had successfully sued the 
government over its mistreatment of detained immigrants. 

• And we heard from one man, Francisco Castaneda, who 


2 



76 


died only four months after testifying before us because of 
the government’s refusal to treat his obvious medical 
needs. 

Today I am again “beyond shock,” because while we sit 
here to discuss this serious topic, we are doing it in a hearing 
called “Holiday on ICE.” 

When Rev. Dantica came to this country, he was not 
looking for a “holiday.” He was fleeing for his life and 
looking for refuge. 

And what Rev. Dantica found in this country was 
certainly not a “holiday.” It was a prison cell, separation from 
the family members he had visited so many times before, 
medical neglect, and death. 

A title like that makes it seem like we are talking about a 
Disney cartoon. But the reality is that this Administration is 
trying to fix a system in which we have seen too many sexual 
assaults; too many in-custody deaths; and too many acts of 
abuse. This Administration is simply trying to abide by the 
Constitution. 

In light of this, yesterday I wrote to Chairman Smith and 


3 



77 


asked him to reconsider the title of this hearing. I would like 
to enter my letter to the Chairman into the record. 

Members of both political parties used to work together to 
fix our broken immigration system. Comprehensive 
Immigration Reform and the DREAM Act are bills that once 
had strong bipartisan support. But throughout this Congress, 
we keep hearing from my colleagues across the aisle that they 
want to deport all 1 1 million undocumented immigrants living 
in our communities. Sometimes they correct us and say that 
we don’t need to forcibly deport all of them — we can just 
make life so difficult that will “self deport.” 

But with a hearing title like this one — “Holiday on 
ICE” — it looks like for some of my colleagues in the Majority, 
it is not enough to deport 1 1 million people. We also need to 
make them suffer. 

And it is not enough to make life so difficult in places like 
Arizona and Alabama that millions of people will “self 
deport.” Now we must make life in detention such hell — so 
unbearable — that even immigrants who are fleeing persecution 


4 



78 


or who are likely to win their case and remain here with their 
family members will agree to give up and go home rather than 
spend one more night in custody. 

When you have a serious problem, you need serious 
solutions. I hope we can all agree that protecting detainees 
from medical neglect and sexual assault requires that kind of 
seriousness. 


5 



Congressman Pedro R. Pierluisi 
Statement for the Record 
House Committee on the Judiciary 
Subcommittee on Immigration Poiicy and Enforcement 
Hearing on “Hoiiday on ICE: the U.S. Department of Homeland Security’s New Immigration 

Detention Standards.” 

March 28, 2012 


Thank you. Ranking Member Conyers. 

1 want to begin by gently noting that the people of Puerto Rico that 1 represent have been 
American citizens since 1917. While millions of Island residents have relocated to the 50 states 
over the years, they are not immigrants. 

On the one hand, this fact has perhaps made it easier for me to approach the complex issue of 
immigration witli a sense of pragmatism, because it is not as intensely personal for me and my 
constituents as it is for other members of the Hispanic community, who are on the front lines in 
the immigration battle. 

On the other hand, Puerto Rico, like so many communities around the countiy, is affected by our 
nation’s immigration policy in profound ways. For example, there are many immigrants from 
the Dominican Republic living in Puerto Rico, botli authorized and unauthorized. They, too, are 
my constituents and their welfare is my concern. How we treat these men and women — our 
fellow human beings — speaks volumes about who we are as a nation and about the values we 
hold. 

With that as backdrop, 1 must say that 1 find the premise of today’s hearing to be misguided and, 
frankly, appalling. 

Our immigration detention system has serious problems. The evidence is as well-documented as 
it is heartrending. Over 110 people have died in immigration custody since 2003. Too many 
others have been subject to rape, abuse, or medical neglect. 

Although there is still a long way to go, DHS and ICE deserve credit for making important 
strides in reforming our detention system, as reflected in the 2011 national detention standards. 



80 


Rather than welcoming these comnionsense standards and seeking their implementation at ICE 
facilities across the nation, my colleagues on the otlier side of the aisle — and some of today’s 
witnesses — have claimed that detainees are now being pampered. 

Tliat assertion does not even pass the laugh test — but nobody should find it amusing. 

Mr. Chairman: the Members of this Subcommittee are blessed to be Americans, citizens of this 
great democracy, which has done so much to make the world a better, freer, more humane place. 
But this love of country should be tempered by a sense of humility, rooted in the knowledge that 
we could just as easily have been born in a darker comer of this world, where liberty or 
economic opportunity is in short supply. 

We should have more empathy for men and women who have left behind everyone and 
everything they know in order to reach our shores, especially since many detainees violated no 
criminal law and those that did have already seived their sentences. Instead of simply paying lip 
service to the idea of humane treatment, we ought to promote policies that treat these people with 
decency and compassion, guided by tire understanding tliat “There, but for the grace of God, go 
I.” 

I look forward to questioning the witnesses and yield back the balance of my time. 


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81 


Material submitted by the Honorable Zoe Lofgren, a Representative in Con- 
gress from the State of California, and Ranking Member, Subcommittee 
on Immigration Policy and Enforcement 


Testimony for the House Judiciary Committee 
Congresswoman Lucille Roybal-Allard 
March 28, 2012 

I would like to thank the Judiciary Committee for convening today’s hearing to discuss 
Immigration and Customs Enforcement’s (ICE) new Performance Based National Detention 
Standards, an important and long-overdue step to safeguard the rights and well-being of 
detained immigrants in the United States. 

To those who believe these rules are too generous, I say we should remember the catalogue 
of documented abuses — sexual assaults, random beatings, preventable deaths and 
management cover-ups — that has for years made our detention system a national 
embarrassment. 

On any given night, more than 30,000 immigrants go to sleep in detention centers across 
America. Despite some recent progress, their growing ranks still include torture survivors, 
children, pregnant women and the elderly. Many detained immigrants have sought legal 
assistance only to discover that none was available; others have requested medical treatment 
and failed to receive it; still others have tried to contact loved ones and legal counsel and found 
that even the telephones didn’t work. 

Even more troubling is the long list of detainees who succumbed to preventable medical 
conditions. Hiu Lui Ng, a Chinese computer engineer, Boubacar Bah, a tailor from Guinea, 
and Tanveer Ahmad, a Pakistani cabdriver — three victims profiled in the media — are just three 
names on the heartbreaking list of detainees who died in agony because their desperate 
appeals for medical attention were ignored until it was too late. 

The absence of due process protections in detention has even resulted in the deportation of 
US citizens. In 2007, Pedro Guzman, a mentally handicapped U.S. citizen from Los Angeles, 
was erroneously removed to Tijuana, Mexico, and spent three months bathing in rivers and 
eating out of dumpsters before being rescued. Similarly, in January 2009, Diane Williams, a 



82 


2 

US citizen suffering from depression and bipolar disorder, was accidentally deported to 
Honduras. 

Thankfully, under the Administration’s thoughtful leadership, DHS and ICE have made 
detention reform a top priority. Acknowledging the present system’s shortcomings, they 
pledged to implement a series of changes to improve the management and oversight of this 
sprawling network of facilities. The new Performance Based National Detention Standards are 
a significant component of this effort and I look forward to their rapid implementation. 

While I support the Administration’s approach to this issue, I also believe Congress has an 
important role to play in reshaping our flawed detention policies. Despite ICE’S admirable 
intentions, the agency’s policies have repeatedly failed to protect the most vulnerable 
detainees. That’s why I introduced HR 933, the Immigration Oversight and Fairness Act, to 
give the standards governing immigrant detention the full force of law. Codifying these rules 
will bring new accountability to a system which has struggled to police itself and help ensure 
that immigrants are afforded the same basic level of treatment at every detention center — from 
the largest federal facility to the most remote county jail. 

Unfortunately, in the pervading anti-immigrant climate in Washington, passing common sense 
detention reform appears unlikely. Yet even without new legislation, there are safe, sensible, 
cost-effective steps Congress can take to improve the detention system. For example, 
effective alternatives to detention, such as electronic monitoring, cost 90 percent less than 
traditional incarceration and have a proven record of success. By approving the President’s 
request to expand these measures, we can safeguard immigrant rights, meet our enforcement 
goals and, at the same time, save the American taxpayer money. 

While we might have different ideas about the best way to fix our flawed immigration laws and 
policies, surely we can all agree that the gross mistreatment of immigrants in our government’s 
custody is simply unacceptable. I remain hopeful that Chairman Smith will join me. 
Congresswoman Lofgren and the DHS leadership in working to build a detention system which 
is compatible with our laws and consistent with our American values. 



83 


Congressman Jared Polis 

Written Statement Submitted to the House Judiciary Subcommittee on Immigration Policy 

and Enforcement 

Hearing on: “Holiday on ICE: The IJ.S. Department of Homeland Security’s New 
Immigration Detention Standards.” 

March 28, 2012 

Today, the Subcommittee on Immigration Policy and Enforcement will discuss the 
Department of Homeland Security (DHS) Immigration and Customs Enforcement’s (ICE) 2011 
Performance-Based National Detention Standards (PBNDS 2011). These common-sense and 
humane reforms are a first step towards reforming a profoundly broken system and are long 
overdue. 1 applaud ICE for taking seriously the need to improve immigration detention and call 
on the agency to implement the standards in all detention facilities as quickly as possible. 

The need for detention standards could not be more urgent. Reports of abuse in detention 
facilities have continued despite previous attempts to address the situation. The American Civil 
Liberties Union (ACLU) discovered through the Freedom of Infonnation Act that nearly two 
hundred cases of sexual abuse have been filed since 2007 alone. Equally horrifying are cases like 
Francisco Castaneda’s and Hiu Lui Ng’s who died either in detention or because of a lack of 
medical care while detained. Sadly, these cases are not limited to one bad facility or a few rogue 
agents; they are symptoms of problems that are endemic to the entire detention system. 

These abuses clearly violate our nation’s sense of justice and liberty, which is why I sent 
a letter, along with 29 other member of Congress, to the Government Accountability Office 
(GAO) asking it to investigate these cases of abuse. That request was accepted, and hopefully, 
along with the new standards, these abuses will finally end 

PBNDS 2011 attempts to address some of the most glaring problems with immigration 
detention facilities, such as lack of access to adequate medical care, telephones and lawyers, and 
protection from sexual abuse. The standards have not yet gone into effect, however, and simply 
announcing them will not fix the problem. Unfortunately, many detention facilities have still 
failed to fully implement the 2008 detention standards. These abuses will not end, therefore, until 
PBNDS 2011 is fully and successfully implemented in every detention facility. ICE must be 
diligent in ensuring that every facility is in full compliance with the standards as soon as 
possible. 

This is not a partisan issue. Regardless of which side of the aisle you are on, we all agree 
that human beings must be treated with decency and afforded basic human rights. Inflicting 
unnecessary harm on immigrants runs contrary to every value our nation holds dear. 1 applaud 
ICE for taking this step and look forward to working with them to ensure that the standards are 
implemented and enforced. Simply put, we can no longer allow these human rights violations to 
continue. It is time to put an end to abuse and injustice in our immigration detention facilities. 



84 


Written Testimony 
for 

The U.S. House of Representatives Committee on the Judiciary 
Honorable Lamar Smith, Chair 
Honorable Steve King, Vice Chair 
Subcommittee on Immigration Policy and Enforcement 
Honorable Elton Gallegly, Chair 
by 

Dr. Dora Schriro, Commissioner, NYC Department of Correction, and author, 
A Report on the Preliminory Assessment of ICE Detention Policies and Practices 
and A Recommended Course of Action for Systems Reform 

March 28, 2012 


Greeting and Introduction 

I am Dr. Dora Schriro, Commissioner of the NYC Department of Correction, a very large jail system 
incarcerating approximately 90,000 inmates, primarily pre-trial detainees, annually. I am proud to have 
served in the field of Corrections virtually my entire career, primarily in leadership positions including 
Warden and then Commissioner of the St. Louis City Jail system, and Director of both the Missouri and 
Arizona Departments of Corrections. I am an expert in Corrections and as such, I understand both the 
contributions and the limitations of the field. I was privileged to Join the Department of Homeland 
Security in 2009 as Special Advisor to Secretary Napolitano on ICE Detention and Removal Operations 
and to head the Immigration Customs and Enforcement Office of Detention Policy and Planning as its 
first Director. I observed firsthand how correctional practices have been applied to civil detention and 
the limited extent to which it worked. During my tenure at ICE, I authored A Report on the Preliminory 
Assessment of ICE Detention Policies and Practices and A Recommended Course of Action for Systems 
Reform. I currently serve on the corrections and immigration subcommittees of the American Bar 
Association tasked with writing standards for criminal and civil incarceration. My expertise in both civil 
and criminal incarceration uniquely qualifies me to comment on the most recent reforms that ICE has 
undertaken. 


1 



85 


The Challenge and the Opportunity: A System of Civil Detention 

As a matter of law, civil detention is unlike criminal incapacitation. Immigration detention is expressly 
not permitted for the purpose of punishment and ICE cannot incarcerate aliens for criminal violations. 
That authority rests exclusively with the Department of Justice, subject to review of the federal courts. 
The authority of ICE is administrative, limited pursuant to the Immigration and Nationality Act, solely to 
detain aliens during the removal process, a civil proceeding. 

My charge during my tenure at ICE was to consider the significant growth in immigrant detention and 
arrest priorities at the agency and to focus in particular, on civil detention and to identify and describe 
opportunities to improve its operation. I conducted in-depth assessments of 25 facilities in the various 
regions across the country. I read reports published by government and others, the majority of them 
containing striking similar conclusions and expressing shared concerns. I spoke at length with legislators, 
ICE personnel and detention staff, the detained alien population and advocates, and other stakeholders. 
I collected my own data and arrived at my own conclusions. Briefly, this is what I saw. 

The rapid dissolution of INS and formation of DHS in 2003, and the marked change in policy from 'Catch 
and Release' to 'Catch and Remove' created unprecedented demand for detention beds. Essentially 
overnight, ICE became the nation's largest system of incapacitation with upwards of 400,000 aliens in its 
custody annually, without the benefit of basic management tools. Information and informational 
systems critical to developing and sustaining a viable detention system. The civil system was cobbled 
together quickly; a string of correctional strategies used to incarcerate criminal defendants and 
sentenced inmates, became the strategy for administratively holding immigrant detainees, the majority 
of them not criminal aliens. 

And up to now, despite bright line differences in civil and criminal detention law, ICE has continued to 
detain administratively held aliens in the same manner as are criminally incarcerated inmates. With 
only a few exceptions, the facilities that ICE continues to use to detain aliens were built and operate as 
correctional facilities. ICE also continues to rely upon criminal detention standards premised upon 
correctional principles of care, custody, and control. These standards impose more restrictions and incur 
more cost than is necessary to effectively manage the majority of the civil detention population. This is 
not to suggest that ICE has not made real improvements in the areas of detention management, 
community supervision and health care. It has and It will continue to do so: The administration is first to 
acknowledge, that there is more to do. Adopting standards, designing detention facilities and 
developing alternative, community-based placements that are congruent with the law of civil detention 
continues to be our challenge and our opportunity. 


The First Detention Facilities modified for Civil Detainees will open shortly and the 2011 Performance- 
Based National Detention Standards have been recently released to guide their Operation 

In 2009, Secretary Napolitano and Director Morton undertook comprehensive reform of the systems of 
civil detention, community supervision, and attendant health care, to further the effectiveness and 


2 



86 


efficiency of these important government functions. A number of these improvements are in place 
today and include developing an objective risk assessment instrument to accurately ascertain individual 
alien's suitability for community supervision and to assign the conditions to achieve compliance; the 
consolidation of facility contracts and cancellation of some contracts with under-utilized and under- 
performing facilities, improved monitoring and better contract compliance procedures; expanded on- 
site oversight by government experts; the establishment of the Detainee Locator system; and timely 
Death-in-Detention Notifications. Most recently, ICE released revised detention standards and 
announced the opening of several, differently designed detention facilities. The response has been 
mixed. 

In an effort to advance this conversation, I respectfully suggest these several issues be given serious 
consideration. What does the law allow? Do the standards advance compliance with law? Does the 
detained alien population present any unique characteristics that warrant special consideration? Are 
there any other significant issues that could impact outcomes? 

The Law; The law is limited, but it is clear. Civil detention is unlike criminal incapacitation. Immigration 
detention is expressly not permitted for the purpose of punishment. The authority of ICE is expressly 
administrative and clearly limited only to detain aliens during the removal process, a civil proceeding. 

The Population: The civilly detained population is appreciably different than the criminally incarcerated. 
None of the aliens in ICE custody is held by ICE on a criminal charge and many have never been 
incarcerated previously for any reason. Only the minority in ICE's custody has a record of a criminal 
conviction, fewer still a conviction for a serious felony crime. ^ Immigrant detainees are held 
administratively an average of 30 days. The institutional conduct of civil detainees including criminal 
aliens throughout their time in ICE's custody is largely incident-free. There are few reported incidents 
between alien detainees and with ICE agents or facility personnel. This population also differs from 
criminal inmates in terms of their life skills. The majority of detained aliens have an employment history, 
intact families and home making skills. They do not require the same level of supervision and the kinds 
of care as do many inmates in jail and prison. They do require language assistance, access to information 
about available relief, and health care that is not conditioned upon anticipated length of stay in 
detention. 

Detention Standards: ICE's 2011 Performance-Based National Detention Standards mirror in most 
ways the correctional standards promulgated by the American Correctional Association (ACA) to guide 
the operation of jails and the oversight of pre-trial prisoners. The ACA standards did not consider and do 
not include provisions for administratively-held aliens. Its standards are specific to the field of 
corrections. They are based upon correctional statute and case law, common correctional practices, and 
characteristics about the prisoner population — offenders' criminogenic profiles, their propensity for 
violence and likelihood of reoffending. ACA standards also assume that the correctional system 
adopting them has the infrastructure in place to effectively implement them. ICE continues to make 


^ When the Report was published in 2009, less than one third of aliens admitted in a year and less than ore half of 
aliens detained on a given day had a criminal conviction and relatively few (11 percent) had committed a UCR Part 
1 crime. 


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87 


strides however does not yet have the in-house expertise in immigration detention and the 
organizational infrastructure to taiior and to enforce detention standards specific to immigration iaw 
and the immigrant population. 

Soon-to-open Detention Facilities: Jails and prisons are secure facilities whose design and construction 
reflect core assumptions about the criminal population to be detained and how they will be managed. 
Most fundamentally, correctional facilities are premised upon the principles of command and control, 
principles incorporated in their design, construction and operating assumptions. For example, in a low 
custody facility, movement within the housing unit and throughout the facility is largely unescorted, 
housing is dormitory-style not cells, and visits are contact not non-contact. ICE's soon-to-open detention 
facilities are comparable to low custody jails in a number of jurisdictions. They afford greater movement 
and personal expression than most facilities that ICE currently uses and affords some opportunity to be 
more self-sufficient. There are other models, less institutionalized and more normalized, that afford the 
necessary protections and precautions for the majority of immigrant detainees, persons with good life 
skills who present little risk of fight or flight including assisted living, seasonal work camps, kibbutz, and 
half-way houses. These facilities - facilities not so large that the aliens and employees cannot know one 
another, the physical plant congruent with its programs and appropriate for special populations, 
recreational and programs services readily accessible to the population, personal privacy afforded in 
sleeping areas and restrooms, cooking and laundry facilities to care for oneself, and adequate space on- 
site for ICE agents to interact regularly with the detained population; facilities proximate to arrest 
activities and located nearby transportation hubs, hospitals with 24-hour emergency health care, and 
legal representation - more closely reflect the field's best practices and our country's commitment to 
civil, civil detention. 


Civil Discourse, Civil Detention 

When government determines that certain persons will be taken into custody, whether the custody is 
civil or criminal, government commits to providing a certain level of care to them for the duration of 
their time in detention. Pursuant to the Immigration and Nationality Act, government detains as many 
as 400,000 aliens annually. Many must be detained.^ Others are remanded by enforcement agents 
exercising the discretion afforded them by law. The majority is removed; the rest receive the relief that 
they sought. Regardless of the result, all of the time in detention must be constitutional. Aliens in civil 
detention must be afforded adequate health care; that is their fundamental right. ^ Detained aliens must 
be permitted to worship consistent with their sincerely held beliefs; compliance with the Religious Land 
Use and Institutionalized Persons Act is required by federal law. Likewise, aliens who are detained by 

^ In 2009, 66 percent of the detained population was subject to mandatory detention. 

^ The Constitution requires that the serious health needs of immigration detainees, like those of pretrial or 
sentenced inmates, be treated. In 2009 at the time of the Report, ICE conditioned care - even for uncontrolled 
suffering - upon the anticipated time to removal, or based on an assessment whether the alien was well enough to 
be deported. In the Corrections field, even an inmate sentenced to death and approaching the imposition of the 
sentence, is assured necessary medical care. To do otherwise would be deliberately indifferent. 


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the government must be protected by the government from unwanted sexual contact throughout their 
detention; transparency and accountability require compliance with the Prisoner Rape Elimination Act. 

The taking of one's liberty is a serious matter. The determination to remove an individual is graver still. 
There is no color of paint to put on the wall or species of flower that can be planted on the grounds of a 
detention facility to mitigate the enormity of government's responsibility to the people, all of the 
people. There is no amount of movement that can be afforded an alien in a detention facility, no 
promise that there will be contact visitation that can lessen the consequences that removable aliens 
face. Let us have this conversation with all of the urgency and the civility that we can muster. To excel in 
this discourse will convey as much about whom we are as a nation as those who entered or remained 
here unlawfully. 


5 



89 



ACLU 

AMERICAN CIVIL LIBERTIES UNION 


WRITTEN STATEMENT OF 
THE AMERICAN CIVIL LIBERTIES insiON 


For a Heanng on 

“Holiday on ICE: The U.S. Deparlment of Homeland Secnrity’s New Immigration 
Detention Standards” 

Submitted to the House Judiciary Subcommittee 
on Immigration Policy and Enforcement 

March 28, 2012 


ACLl' Washington Legislative OITice 
Laura W Murphy. Director 
Joanne Lin. Legislative Counsel 
Georgeanne Usova. Legislative Assistant 
Christopher Rickerd 


ACLU Immigrants' Rights Project 
Judy Rabinovilz. Deputy Director, and 
Director of Detention and Federal 
Enforcement Programs 
Michael Tan. Staff Attorney 


ACLU National Pri.san Project 
David Fatlii, Director 
Gabriel Eber. Staff Attorney 
Amy Fettig, Staff Attorney 
David M Shapiro, Staff Attorney 

ACLU of Illinois 

John Knight. Director, LGBT and AIDS 
Project 


ACLU Reproductive Freedom Project 
Alexa Kolbi-Molinas. Staff Attorney 


ACLU Program on Freedom of Religion 
and Belief 
Dan Mach. Director 


ACLU of Southern California 
Ahilan Arulanantiiam, Deputy Legal 
Director 

Michael Kaufman, Staff Attorney 


ACLU of San Diego 
Sean Riordan, Staff .Attorney 




90 


I. Introduction 

The American Civil Liberties Union (ACLU) is a nationwide, non-partisan organization 
of more than a half-million members, countless additional activists and supporters, and 53 
affiliates nationwide dedicated to enforcing the fundamental rights of the Constitution and laws 
of the United States. The Immigrants’ Rights Project (IRP) of the ACLU engages in a 
nationwide program of litigation, advocacy, and public education to enforce and protect the 
constitutional and civil rights of immigrants, with its immigration detention work supported and 
complemented by the ACLU’s National Prison Project (NPP), Reproductive Freedom Project 
(RFP), Lesbian Gay Bisexual & Transgender (LGBT) Project, and the Program on Freedom of 
Religion and Belief (PFRB). The ACLU’s Washington Legislative Office (WLO) conducts 
legislative and administrative advocacy to advance the organization’s goals. 

The ACLU submits this statement to present its views on: (i) why the recently announced 
Immigration and Customs Enforcement agency’s (ICE) 201 1 Performance-Based National 
Detention Standards (201 1 PBNDS)' are a necessary, though minimal, response to a crisis in 
immigration detention conditions; and (ii) why the 2011 PBNDS are only the first step toward 
establishing a civil immigration detention system that comports with the U.S. Constitution, as 
they contain serious deficiencies and omissions. 

The ACLU and its affiliates have produced seven major reports on immigration detention 
in the last four years and have lawsuits pending over detention conditions at ICE facilities in 
Arizona, California, Nebraska, Rhode Island, and Texas. These reports and litigation address the 
topics covered in this statement, all of which are underpinned by every person’s constitutional 
rights to fair and humane treatment in the United States, including due process. With respect to 
sexual abuse and assault; medical and mental health care; women’s health; hormone therapy; 
segregation, shackling, and use of force; limited English proficiency; and religious freedom, as 
well as all other aspects of an immigration detainee’s constitutional rights, the ACLU will 
continue to hold ICE accountable for humane treatment of those in its custody. 

In some of these areas, as is elaborated below for women’s health and religious freedom, 
ICE has made first-rate progress in the content of its standards. If they are properly 
implemented, these standards will result in tangible benefits to detainees. Other standards, 
including medical and menial health care, hormone therapy, segregation, and limited English 
proficiency, receive mixed appraisals, with elements of strength and weakness in the standards 
themselves. For the sexual abuse and assault standards, however, which ICE falsely claims to be 
fully compliant with the Prison Rape Elimination Act (PREA), as well as those applicable to 


Available at http://vv \vvv.icc.gov.Moclib/dctcntion-standaTds/201 l/pbnds2011 pdf (hereinafter PBNDS). 

2 



shackling and use of force, which have regressed from their 2008 counterparts, ICE does not 
merit a passing grade. 

In brief, the ACLU believes that: 

•Uniform and speedy implementation of the PBNDS is vital, and ICE must hold all detention 
facilities completely accountable to the standards, including prompt termination of contracts with 
deficient facilities. (See Section III, Types of ICE Detention Facilities) 

•The PBNDS do not adequately address sexual abuse and assault in ICE detention facilities. 
Instead, immigration detainees should be covered, as Congress intended, by the Prison Rape 
Elimination Act’s (PREA) protections implemented by the Department of Justice. (See Section 
IV, Sexual Abuse and Assault) 

•While the PBNDS provide long-overdue minimal standards of medical and mental health care, 
they are not complete or consistently compliant with accepted correctional standards of care. 

(See Section V, Medical and Mental Health Care) 

•If fully implemented and enforced, the PBNDS will help ensure that women in ICE detention 
receive necessary, potentially life-saving services. (See Section VI, Women’s Health) 

•The PBNDS on hormone therapy provides a positive starting point, but ICE also needs to ensure 
proper training for facility staff. (See Section VII, Hormone Therapy) 

•The 2011 PBNDS make some improvements to the use of segregation in ICE facilities, but need 
to limit further these harsh incarceration methods which are inappropriate to use routinely in a 
civil detention system. The standards take troubling steps backwards in the regulation of 
restraints and use of force as compared with their 2008 predecessors, changes that should 
immediately be reversed. (See Section VllI, Segregation, Shackling, and Use of Force) 

•The PBNDS on detainees with limited English proficiency must be carefully monitored to 
ensure implementation, and refined by ICE to achieve maximum language access. (See Section 
IX, Limited English Proficiency) 

•The 2011 PBNDS are commendably attentive to religious freedom. (See Section X, Religious 
Freedom) 

While the ACLU’s focus in this statement is on conditions of immigration detention, the 
ACLLT is also concerned about the massive expansion of immigration detention that has led to 
unnecessary incarceration of tens of thousands of individuals who pose no danger or flight risk. 
LTntil this problem is addressed, and procedures are put in place to ensure that detention is only 



92 


used as a last resort, the kinds of abuses that are documented in this statement will continue. The 
most direct and immediate path to creating a truly civil and humane immigration detention 
system - and to controlling the burdensome costs this system consumes - is to end the 
overreliance on jail-like detention for alleged civil immigration violators. 

11. Overview of ICE Detention 

The 2011 PBNDS were developed in the wake of sustained media exposure of gross 
human rights violations in ICE detention. Informed by documents obtained by the ACLU in 
federal court through Freedom of Information Act (FOLA) litigation, the New York Times 
reported that ICE “officials . . . used their role as overseers to cover up evidence of mistreatment, 
deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts 
that pointed to substandard care or abuse.”^ The agency had even lost track of how many 
detainees died in its custody.'* The Washington Post published a four-part series titled “Careless 
Detention: Medical Care in Immigrant Prisons,” which concluded with an examination of the 
ACEU of Southern California’s successful work to stop forcible drugging of detainees for 
deportation.'' The Post collaborated with CBS News’s 60 Minutes, resulting in a broadcast 
segment featuring extensive “evidence that immigrants are suffering from neglect and some 
don’t survive detention in America.”' 

ICE Director John Morton recently testified that his creation of ODPP in 2009 and its 
mission to develop detention standards arose from “a time when the agency was being very 
strongiy criticized for a lack of uniformity particularly with regard to medical care. We had had 
a high number of deaths in 2004. There were 24 deaths in our custody.”* Indeed, at least 129 
ICE detainees have died in custody since October 2003.^ The Washington Post aotsA in 2008 
that the leading cause of death is suicide, adding that care for mental illness was grossly 


■ Nina Bernstein, “Officials Hid Tmth of Immigrant Deaths in Jail.” New York Times (Jan. 9, 2010), 
available at ht tPi/Avwv. .in times. com/20i0/0 l/l 0/us, '10dctain.html?pagc\vantcd""all 
^ Nina Bernstein, “Officials Say Detainee Fatalities Were Missed.” New York Times (Aug. 17, 2009), 
av ailablc at http : // www .ny times . com/2009/08/ 1 8/us/ 1 8immig .html 

** Dana Priest and Amy Goldstein (May II -14, 2008), available at httpy,A\yvyv;,vyasliiimtonppstxom^^ 
siv/nation/snecials/immiaration.d ndcx .htmi 

' Scott Pelley, “Detention in America.” (Feb. 1 1, 2009), available at 
httn:/ywww.cbsnews.com/staries/2008/05,'’09/6()minut es/main4 083279.shbni 

’’ John Morton. Testimonv to tlic House Appropriations Subcommittee on Homeland Security (Mar. 8, 
2012 ). 

’ See ICE. “List of Deaths in ICE Custody.” (Dec. 19, 2011), available at 

littp:/ wwvy.ice gO’ doehb tonhepprts/detaineedejiths20()3,j3rosent.pdf; “ICE detainee passes away after 
being rushed to local hospital.’ (Jan. 18, 2012), available at 

http: 'vywvv ice .gov new s rt leases/1 201/1 201 1 Slasyegas.htrn; “ICE detainee passes away at Los Angeles- 
area hospital. Mexican national was being treated for pneumonia.” (Mar. 5, 2012), available at 
htto:/./\vvvvv.ice.gov7ncws,/rcleases/1203/T20305victorviIlc.btm 

4 



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deficient: “Suicidal detainees can go undetected or unmonitored.”* These deaths took place in 
an immigration detention system which detains hundreds of thousands of people annually, using 
about 250 authorized facilities across the country. In 2002, the former INS detained 202,000 
individuals.^ By 2010, that number increased by 80% to 363,000.*” Whereas detention beds in 
FY 2003 numbered 18,000,** the current level of 34,000 is an 89% increase, with nearly half of 
those beds contracted from private prison companies.*^ 

The massive expansion of immigration detention has been fueled by the assumption that 
detention is necessary to ensure removal. Yet immigration detainees are overwhelmingly non- 
violent,*” and other alternative forms of supervision are available that would effectuate the 
government’s interest in removal without the same economic and human costs. Instead, despite 
the civil and nonpunitive purpose of immigration detention, ICE continues to rely on an 
overwhelmingly penal model of incarceration. In October 2009, correctional expert Dr. Dora 
Schriro, who served as Department of Homeland Security (DHS) Secretary Janet Napolitano’s 
Special Advisor on ICE Detention & Removal and as Director of the ICE Office of Detention 
Policy and Planning (ODPP), presented DHS with her comprehensive report, Immigration 
Detention: Overview and Recommendations, which noted that “[w]ith only a few exceptions, the 
facilities that ICE uses to detain aliens were built, and operate, as jails and prisons to confine pre- 
trial and sentenced felons. ICE relies primarily on correctional incarceration standards designed 
for pre-trial felons and on correctional principles of care, custody, and control. These standards 
impose more restrictions and carry more costs than are necessary to effectively manage the 
majority of the detained population.”*'* 


® Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment: Errors in Psychiatric Diagnoses 
and Drugs Plague Strained Immigration System.” Washington Post (May 13, 2008), available at 
http://yyww.\yashingtpnpost.com/yyp~S!yhnat.ipn/speciaiS7)mmijjratlon/c\« djpl.hm^^ 

” Donald Kerwin and Serena Yi-Ying Lin. Immigrant Detention: Can ICE Meet Its Legal Imperatives and 
Case Management ResponsihilitiesI (Migration Policy’ Institute, Sept. 2009), 7, available at 
httn://www. miur ationD Qlicv .Qru/Dubs/dctentionrcportSeptl009.ndf 

*” DHS Office of hiiniigration Sidiisiics, Immigration Enforcement Actions: 2010. (June 2011), 4, 
available at ht tp://w ww dhs.u ov7x librarv/assets/statistics/pi iblic ations/enfo rcemen t-ar-20 10. pdf 
** DHS, Office of Inspector General, Detention and Removal of Illegal Aliens. (Apr. 2006), 5. 

*' Detention Watch Network, “The Influence of the Private Prison Industry’ in the Immigration Detention 
Business.” (May 201 1), 1, available at 

http:/;yvww.detentionw^chnetwork.oig,fsites/detention\vatchnetvvork,org/files/PrivatePrisonPDF- 

FrNA L% 20.v-ll-l l.D df 

TTic majority of those detained from 2005 through 2009 had no criminal convictions whatsoever. 
Transactional Records Access Clearinghouse (Syracuse University), “Detention of Criminal Aliens: What 
Has Congress Bouglit?” (Feb. 1 1, 2010), available at 

http://trac.sy’r,eduhjmnijgrtUion/repprts/224/indeyyJdm Moreover, those detainees with criminal 
convictions - many of vvhich arc minor and reflect criminal conduct years before, from vvhich the 
indiv idual has long been rehabilitated - have all served their sentences. The purpose of immigration 
detention is not to pimish, but to ensure appearance at removal if it is ordered. 

Schriro, 2-3, available at http:/7ww'w ,icc.gov/doclib/aboub'officcs/odpp/pdf7icc-dctcution-rpt,pdf 

5 



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Many immigrants are subject to unnecessary detention due to TCE’s assumption that mass 
detention is necessary to effective immigration enforcement. Immigrants who do not pose any 
flight risk or public safety concern are routinely detained despite enormous costs of $2 billion to 
U.S. taxpayers annually.*' Detention costs range from $122 to $166 per person per day, while 
alternative methods cost from 30 cents to $14 per person per day. DHS itself understands that 

its Alternatives to Detention (ATD) program “is a cost-effective alternative to secure detention 
of aliens in removal proceedings.” Indeed, DHS’s pilot programs for ATDs achieved an 
appearance rate of 94%, far in excess of the targeted 58%.** Ultimately, no detention standards 
can address ICE’s misuse of detention resources to incarcerate individuals who do not need to be 
detained. ICE’s promulgation of the 201 1 PBNDS should, therefore, not serve as an excuse to 
avoid the fundamental issue of reducing over-incarceration in the immigration detention system, 
which is the best way to control costs and ameliorate deficient conditions of confinement. 

in. Types of ICE Detention Facilities 

The 2011 PBNDS are plagued by key deficiencies, several of which are explained below. 
Chief among these deficiencies, however, is ICE’s continued refusal to ensure that its standards 
are applied uniformly to all detainees in its custody. As currently written, the PBNDS do not 
require uniform implementation across the disparate types of facilities nationwide where ICE 
currently holds detainees, ICE’s facilities, which include private prisons, contracts with state and 
local jails (known as Intergovernmental Service Agreements or IGSAs), as well as ICE-owned 
facilities, operate under widely varying detention standards, with prior versions dating from 2000 
and 2008. ICE still makes extensive use of facilities that do not even have its 2008 standards in 
operation. No ICE damilioyi facility presently operates under the 2011 PBNDS. Indeed, even 
ICE’s new flagship facility in Karnes County, Texas, is governed by the 2008 PBNDS; as the 
Los Angeles Times noted, “the Karnes facility, which opened after the new standards were 
announced, is not required to comply with them because federal officials didn’t bother to write it 
into the operating contract. Instead, the facility will operate under 2008 guidelines, with an 
option to shift to the new rules later this year.” 

Contractual renegotiations for implementation of the 20 1 1 PBNDS promise to be 
laborious, particularly for what are known as “non-dedicated” IGSA facilities, meaning state and 
local facilities which incarcerate both criminal and immigration detainees. As ICE Director 
Morton recently testified, “there are a few facilities that we completely control and in those 

*’ DHS FY 2012 Budget lustification, ICE Salaries and Expenses, 938, available at 
httD:/Av ww. dlis.irov/xlibr ar\7a .ssets/dhs-congrcssiona l-bud net-jusliticati on-fv2 0i2.Ddf. By adding 600 
beds to tire administration’s request. Congress’s enacted budget added expenditures of $27 to $36 million. 

National Immigration Foaim, The Math of Immigration Detention. (Aug. 201 1), 1, available at 
httit:/7www, iminigrationforum.org/images/uploads/iVIathofImtnigrationDetcntioii.pdf 
” DHS FY 2012 Budget Justification, supra, 940. 

'Vrf. at 925. 

” Editorial, “Immigration's loose rules of detention.” Los Angeles Times (Mar. 18, 2012). 

6 



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implementation can be immediate. The vast majority of the facilities that we use, we use by 
contract.”^” Although it is encouraging that the 201 1 PBNDS will apply fully to “dedicated” 
IGSA facilities, which hold 100% immigration detainees, non-dedicated IGSA facilities, which 
hold both immigration and non-immigration populations, are given excessive latitude throughout 
the standards either to “conform to these procedures or adopt, adapt or establish alternatives, 
provided they meet or exceed the intent represented by these procedures.” Thus, a lack of 
uniformity will persist even if even if non-dedicated IGSA facilities reach contractual 
agreements to upgrade to the 2011 PBNDS. ICE must ensure that the same standards apply for 
all detainees in its custody. 

The ACLU also urges ICE not to exempt facilities holding detainees for 72 hours or less 
from its standards - a lesson the agency should have learned from bitter experience. In April 
2009, the ACLU of Southern California and its litigation partners filed a lawsuit against DHS for 
violations of the constitutional rights of immigrant detainees at a secret detention facility in Los 
Angeles known as B-18. B-18 was part of a network of such facilities across the country, which 
were designated as short-term processing centers but instead held detainees in limbo, sometimes 
for weeks. Detention took place without basic provisions such as beds, drinking water, 
toothbrushes, and means of communication with the outside world. Detainees were often not 
able to shower, change clothes, or brush their teeth for days, and had no recreation opportunities. 
As one immigrant recalled, “we were like animals ... I was very scared for my life.”^^ The 
lawsuit led to a settlement agreement whereby DHS agreed not to hold persons overnight at B- 
18, and to provide basic supplies and avenues of communication while they are housed at the 
facility. 


Current immigration detention conditions at Just one “non-dedicated” IGSA facility, the 
Pinal County Jail (PCJ) in Florence, Arizona, provide a useful illustration of the danger posed by 
ice’s patchwork approach to implementation. PCJ operates under the antiquated 2000 ICE 

*“ Morton Testimony (Mar. 8, 2012), supra. 

ICE must also ensure that individuals in its legal custody are transferred only to facilities that comply 
with its detention standards. The ACLU has documented several instances of ICE detainees subjected to 
abusive or substandard treatment upon transfer to a non-ICE facility. For example, tlie ACLU of San 
Diego reports that John Doe, an immigrant with no criminal historyy w as transferred against his w ill from 
the Otay Mesa detention facility, am by Corrections Corporation of America, to a contracted hospital, 
Alvarado Parkways Institute (API) in La Mesa, on at least two occasions. During the approximately one 
month combined that he spent in isolation at API, and subject to ICE orders, Doe reports being subjected 
to the followirrg conditiorrs urrder amred guard: both ankles shackled to tire bed except for 
bathroom/shower use, no exercise, and iro television or rrcvvspapers. His orrly “treatment” w as one 10 or 
1 5 minute visit a week by a psychiatrist and occasional questiorrs by staff as to whether he was hr pain. 

Associated Press, “Lawsuit: Detainees kept in squahd corrditions.” (Apr. 2, 2009), available at 
http://wyyw:jiisiibG,nrsn,cpm/jd.'3()020279/ns/us_neyy5rCriine jusd 
conditions/“.T21mpSUSlWI 

Castellano v. Napolitano (C.D. Cal. 2009); see also Robert J. Lopez, “Lawsuit brings better conditions 
for immigratiorr detainees.” Los Angeles Times (Sept. 17, 2009), av'ailable at 
htto://artidcs.latimcs.com/200Wscp/17;Jocal/mc-imtnig-iaill7 

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detention standards and has been the subject of extensive and critical detention conditions 
reporting by the University of California, Davis Immigration Law Clinic, the Inter-American 
Commission on Human Rights,^"* and the ACLU of Arizona.^' Ongoing concerns include 
inadequate medical care, insufficient hygiene supplies, no contact visits with family, no outdoor 
recreation, and verbal abuse by Jail personnel. 

PCI received “deficient” audit ratings in 2007, 2008, and 2009, yet ICE acted only at the 
end of 20 1 0, by transferring female detainees to another facility (the agency claimed that the 
transfer was unrelated to conditions). This decision left male detainees in place, 90 of whom 
went on hunger strike in 201 1 to protest PCI’s conditions. In a recent press interview, the Pinal 
County official in charge of the Jail exemplified local resistance to making accommodations for 
ICE detainees: “Asked whether he sees a difference between ‘criminal inmates’ and ‘detainees,’ 
[the Chief Deputy] answers, ‘Corrections, detention — it’s all the same thing.’”^’ This context, 
in which ICE pays about $13 million annually to Pinal County for use of itsjail, will test 
Director Morton’s commitment that for “those facilities [in which] we impose the standards by 
way of a contract renegotiation . . . [i]f anyone refuses to comply, then they no longer have our 
business. This is not optional.”^* 

ICE’S tolerance of inhumane detention conditions at places like PCJ has resulted in 
assaults on detainees’ health and welfare. For PCJ, the ACLU of Arizona documented Leticia’s 
story, that of a mother with two U.S. citizen children w’ho is a 20-year resident of Phoenix and 
has never been arrested or convicted of any crime. ICE nevertheless detained her for more than a 
year at PCJ, during which she was deprived of contact with her children, was allowed no outdoor 
recreation, and suffered depression and anxiety. Phone calls at PCJ, a local newspaper reported, 
can cost $20 for 1.$ minutes, adding that “[i]t took more than a year after Leticia was taken by 
ICE for her to hug one of her children, and it happened as a fluke. Her 8-year-old son began 
crying for his mother during her court hearing, and a guard had the heart to allow them a short 


The Inter-American Commission's findings and March 201 1 report are available at 
littD:.7ww'v.oas.org/cm'iachr;'mcdia cciilcf/PRclca.scs/201 1/02 hasp 
ACLU of Arizona, In Their Own Words: Enduring Abuse in Arizona Immigration Detention Centers 
(2011), 1,3, available at 

http:,:ywvyw,acliiaz,grg/sjtes/detaultiljies/dpcuments/to l.pdf 

ice’s inspection and compliance procedures have been tire subject of sustained criticism. See generally 
NILC, ACLU of Southern California, and Holland & Knight, A Broken System: Confidential Reports 
Reveal Failures in U.S. Detention Centers (July 2009), v'ii (identifying “systemic problems with the 
annual review procedures and tlicir inadequacy for identifying and correcting noncompliance witli the 
detention standards”), available at www .nilc. Qrn/d ocumeat. html?i d~9 
Grcgoiy Pratt, “Immigrants Wlio Fight Deportation Arc Packed Into Federal Gulags for Montlis or 
Years Before Their Cases Are Heard.” Phoenix New Times (June 23, 2011), available at 
http:/7www.pliocnixnc\vtnncs.coin/20i l-Q6-23/acws/immigrants-vvho-figlit"dcpQrtation-ar'C"nacked-into- 

federai-guiagS:for:mo.ntbL-and-year5-befpre-their<ases-are-hear(f3 Most of the “criminal” inmates at 

PCJ are in fact pretrial detainees who are presumed irmocent. 

** Morton Testimony (Mar. 8, 2012), supra. 


8 



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visit. The separation adversely affected the boy. Depressed, he started failing in school.”*'^ ICE 
continued to detain Leticia after her year at PCJ, releasing her only after a federal district court 
judge intervened nine months later. 

Leticia’s ordeal is far from atypical. And, as the following review of specific detention 
standards makes clear, her very survival in the immigration detention system - without being 
sexually assaulted, mistreated for medical and/or mental health care, or brutalized by detention 
officers’ use of force - was far from certain. 

IV. Sexual Abuse and Assault 

The 2011 Performance-Based National Detention Standards Do Not Adequately Address the 
Widespread Problem of Sexual Abuse and Assault in ICE Detention Facilities and Are Inferior to 
Protection under the Prison Rape Elimination Act (PREA). 

a. TCE’s dismal track record on sexual abuse and assault prevention 

Sexual abuse and assault is a serious and pervasive problem in immigration detention 
facilities. Government documents obtained through an ACLU FOIA request reveal nearly 200 
allegations of sexual abuse and assault at detention facilities across the country since 2007.^° 
Various reports,^* documentaries,^^ and complaints^^ point to numerous specific examples of 
ongoing abuse. These reported cases evidence a widespread, systemic problem — particularly in 
light of the many obstacles immigration detainees face in reporting abuse. In January 2012, 28 
House members requested that the Government Accountability Office (GAO) investigate these 


Id. 

See httos://www.aclu.ora.tmans/sexiial-abiise"immiiiration-delentiQii-faeilities 
^'See, e.g., Carrie Johnson, “Immigration Detainees Seek Prison-Rape Protection.” (Dec. 13, 201 1), 
available at httn:.v’www .nnr.ora/JO 11/ 12/1 3/i4.3638236/nnniiaration -detainees -seek -pnson-rane- 
protection : David Kaiser and Lovisa Stannovv, ‘"Immigrant Detainees: The New Sc.x Abuse Crisis.” New 
York Review of Books blog (Nov. 23, 201 1), available at 

littp:.l/'vww.nvbooks. com/blogs/iivrblog/20 1 l,'iiov/23/immigraiit-dctaiiices-new-sev-abuse -crisis . For 
editorials on the topic, see "Protect Detainees Too.” Los Angeles Times (Dec. 1 2, 201 1 ), available at 
httn://www.latimes.com/ne\r s/oninioii/editonals/la-ed-prea-201 112 12.0.279053 9. stoiv ?: "A Broken, 
Dangerous System.” New York Times (Dec. 4, 201 1), available at 

htto:.//www iivtimes. com/201 1/1 2/05.1oDinion./a-broken-d:mgerous-svstem.html?: "How committed is the 
Dept, of Justice to ending rape behind bars?” Washington Post (Nov. 2,5, 2011), available at 
htt D:,//w ww.washinglonpost.com./oniniQns /'how' -committed-is-iustico-dept-tO"eiidi ng-r aue-behmd- 
bars/20 i 1/1 l/22,.'gIOAiuz5wN storv.html 
PBS l''rontiine: last in Detention (Oct. 1 8, 201 1), available at 
http://vvvvw.pbs.org/vvgbh/pagcs/froiitlinc.''racc-multic-iiltural/lost-in-detcntioii/traiisctipt-ll/ 

’’ National Immigrant Justice Center, "Mass Civil Rights Complaint Details Systemic Abuse of Sexual 
Minorities in U.S. Immigration Detention .” (Apr. 13, 2011), available at 
http:.''/w'vw. immigrant! usticc.org/issues.lstop-sc.xual-abusc -detained-imrnigrants 

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incidents.^'* Many other incidents have doubtless gone unreported by detainees who fear 
speaking out, have language barriers, or are unable to do so without the help of an attorney to 
navigate the difficult process (84 percent of detainees lack legal counsel).^' The cases we do 
know about clearly demonstrate an immediate need for stronger protections against sexual abuse 
and assault, in particular the immediate and direct application of the Prison Rape Elimination Act 
(PREA) to all immigration detainees. 

Claudia Leiva Deras, a 27-year-old woman who fled domestic violence in Honduras, is 
one detainee who suffered the consequences of ICE’s systemic failure to protect. Ms. Leiva 
Deras was arrested by police after a 911 call reporting domestic violence, and detained in the 
Cass County, Nebraska, Jail, which contracts with federal authorities to house ICE detainees as a 
“non-dedicated” IGSA facility. ” During her four months in custody, she alleges suffering 
extremely violent physical and sexual assaults hy another detainee on an almost daily basis, 
resulting in physical injuries including bleeding, headaches, abdominal pain, and stomach 
cramps.^* According to her complaint, the other detainee “sexually assaulted [Ms. Leiva Deras], 
including digitally penetrating [her]. [The assailant’s] long fingernails lacerated Plaintiff 
internally, leaving Plaintiff in pain as well as in fear of contracting a sexually transmitted 
disease. After penetrating Plaintiff to the point that she bled, [the assailant] would lick the blood 
off her fingers in front of Plaintiff”^’ 

Frightened that reporting these constant attacks would result in retaliation from her 
abuser, Ms. Leiva Deras filed written grievances asking for medical attention to her injuries, 
hoping she could tell a doctor what was happening. Her pleas for a doctor were refused.'*® When 
Ms. Leiva Deras did report the assaults and her injuries, she was still denied medical 
examination, STD testing, mental health care, or counseling, in spite her attorney’s requests. '** 
After learning that she had been repeatedly raped and beaten under their care, the facility staff 


January^ 4, 2012 letter available at 

http://polis,housc.gov/UploadcdFilcs/010.^12 GAO Detention l-cttcr.odf 
” See generally ACLU, “Sexual Abuse in Immigration Detention." (Oct. 2011), available at 
httD://www.aclu.ortr/.sexiial-abuse-inimigration-detention: see also American Bar Association 
Commission on Immigration, Reforming the Immigration System: Proposals to 

Promote Independence. Fairness. Efficiency, and Professionalism in the Adjudication of Removal Cases. 
(2010), 5-8, available at http:, "new, abanct-org./immigration/oagcs/default.asD.x 

“ Leiva Deras v. Bmeggemann, No. 4:20I2cr'03000 (D. Neb. Jan. 3, 2012), Complaint at 1-2, available 
at httjr:/,'w-ww-.acluncbraska.org/imagcs./attachmcnts;T-civa Deras Complaint.pdf . 

’’ Id. at 3 . 

’*7d.at3-4. 

® kl. at 3 . 

"" Id. at 4. 

■“ Id. at 4-5. 


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offered Ms. Deras nothing but a Tylenol; on a medical round, she was told that no doctor’s 
appointment would be scheduled: “Immigration doesn’t pay for that. You’re not outside. 

Ms. Deras, who has become a lawful permanent resident of the United States based on 
the domestic violence she suffered, is not the only woman to escape violence in her home 
country only to become the victim of sexual assault while in ICE custody. The ACLU of Texas 
recently filed a class action lawsuit on behalf of three immigrant women named plaintiffs who 
were sexually assaulted by a male guard while being transported from the T. Don Hutto Family 
Residential Center in Taylor, Texas.’^ One of the women assaulted, Sarah, who had escaped to 
the U.S. to avoid repeated beatings and rapes by a military commander in Eritrea, described her 
ordeal at Hutto this way: “As he was doing this 1 was having a flashback to what happened to me 
in my home country. 1 thought this man is never going to take me to the airport, he is going to 
take me to a certain place where he will do whatever he wants to me.”''"' 

All three women had come to the United States seeking asylum, but rather than finding 
safety in this country they were instead sexually assaulted by Escort Officer Donald Dunn, a 
contract employee. ICE’s policy prohibiting opposite-sex solo transport of detainees was 
repeatedly ignored, giving Dunn the opportunity to prey on vulnerable people placed in his care. 
Log books and other documents obtained by the ACLU of Texas indicate that in addition to the 
seven known occasions on which Dunn is believed to have assaulted a total of nine women, at 
least 20 different male guards transported at least 44 female detainees alone between December 
2008 and May 2010. Dunn assaulted the three named plaintiffs and at least six other female 
detainees as he drove them — alone — to the airport.'*^ For these assaults, Dunn pled guilty in state 
court to counts of official oppression and unlawful restraint, and has also been convicted on two 
federal criminal counts of violating civil rights '*’ 

These crimes were perpetrated by staff of a facility that is run by a Correction 
Corporation of America (CCA), a private prison company. Hutto is promoted by ICE as a model 


Id . ; .see ofao Press Release, ACLU of Nebraska, Offered a Tylenol in Response to Rape in Jail (Jan. 23, 
2012), available at http:,ywww.aclunebraska-orn.dndex-php/immigrants-riahts,U37-qoffered-a"tylenoki-m" 
responsc-to-raae-in-iail 

Press release, ACLU of Texas, ACLU of Texas Sues ICE Officials, Williamson County and CCA for 
Sexual Assault of hnmigrant Women (Oct. 19, 201 1), available at 
httpp/wwwiaclut2:.prg./2011/10/19/ac!u-oftexasrsues:ice-officia]srwi|ljarnspn-^^^ 

assauiUofdmmigraiilywgmeii/; Doe v. JVeve/ej5( No. l:Il-cv-00907 (W.D. Tx. 2011), Complaint, available 
at http:/./www.aclutx.org/documents/T i 1019DocvNcvelefFFilcStampcdPi.iblicComplaint.pdF 
ACLU, Sexual Abme in Immi'^ration Detention - Sarah's Story (Oct. 16, 2011), 
littps://wrv'v,aclu.org/imm!gi'ants-i'iglits/sc.xiial-abusc-imniigiation-dctcntion-sarahs -story 
Aeve/e/)’'complaint, supra, at 1-2. 

* Id. 

ACLU, “Documents Obtained by ACLU Show Sexual Abuse of Immigration Detainees Is Widespread 
National Problem.’’ (Oct. 19, 2011), available at ht tp:/A\ww.a clu.org/imniigrants-iiglits-pnsoners-rights- 
piisoncrs-iights/documcnts-obtaincd-aclu-show-sc.xual-abusc. 

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of its detention reforms, and featured a newly installed TCE Detention Services Manager at the 
time of the incidents. ICE’s failure to prevent the Hutto crimes demonstrates how the agency’s 
oversight regime is insufficient, how the ICE model of self-policing falls short, and why PREA 
needs to be applied directly to ICE facilities. 

ice’s failure to protect its most vulnerable detainees is sadly recurrent: at the Eloy 
Detention Center in Arizona, also run by CCA, Tanya Guzman-Martinez, a transgender woman, 
was placed in housing with men.’° Each time she courageously sought help, she says she was 
threatened with segregation rather than protected. She alleges that she was sexually assaulted 
twice. One incident involved a detention officer who, after repeated harassment, maliciously 
forced her to ingest his ejaculated semen and threatened to deport her if she did not comply with 
his demands. Ms. Guzman-Martinez immediately reported the assault to detention staff and the 
Eloy Police Department, and the detention officer was later convicted in Pinal County Superior 
Court of attempted unlawful sexual contact. Despite this attack, ICE and facility staff allegedly 
did nothing to protect her from further abuse. In a second incident that allegedly took place five 
months later, Ms. Guzman-Martinez was sexually assaulted by a male detainee in the same all- 
male housing unit. She feared retaliation by detention staff and other detainees; a week later, 
after she was able to report the second assault to police, Ms. Guzman-Martinez was released 
from ICE custody. 

These horrific cases do not simply tell the story of a few “bad apples” on staff at ICE 
detention centers. On the contrary, incidents like these have been reported in almost every state 
where detention facilities exist. Other incidents since 2007 have occurred at Hutto; Port Isabel, 
Texas; Pearsall, Texas; and in Florida.^' Human Rights Watch’s comprehensive 2010 report 
examined “more than 15 separate documented incidents and allegations of sexual assault, abuse, 
or harassment from across the ICE detention system, involving more than 50 alleged detainee 
victims,” and concluded that “[tjhis accumulation of reports indicates that the problem cannot be 
dismissed as a series of isolated incidents, and that there are systemic failures at issue. At the 
same time, the number of reported cases almost certainly does not come close to capturing the 


ACLU of Arizona, In Their Own Worch, supra, at 2. 

See (jiiznion-Mortinez v. CCA, (D. Az. Dec. 5, 201 1), available at 
htui:/Avww.acluaz.orii/s ites/de faulEftles/doeimients/Guzman%20-%20Comulaint.ndf 
See ACLU, Sexual Abuse in Immigration Detention Facilities (Oct. 17, 2011), 
https:, '/WWW. aclu.org/maos/sexual-abuse-im migra tion-detention-facilities 
Sec Carol Lloyd, “Hanky-Panky or Sc.xual Assault?” Salon.com (May 31, 2007); “E.x-Fcd Agent Pleads 
Guilty in Sex-Assault Case.” Miami Herald (Apr. 3, 2008); Brian Collister, “More Sex Assault 
Allegations at Immigrant Detention Center.” WOAI.com (Dec. 29, 2008); Mary Flood, “Ex -Prison Guard 
Admits to Fondling Immigrant Women.” Houston Chronicle (Sept. 24, 2009). 

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extent of the problem.”'* This leaves no question that drastic refonns are needed to address 
ICE’S systemic failure to protect its detainees from sexual abuse and assault. 

b. The easily available and just solution: ICE detainees must be included in the 
Department of Justice’s regulations implementing PREA 

PREA, enacted by a unanimous Congress in 2003, was meant to protect all persons in 
civil or criminal custody from rape and sexual abuse.’^ PREA was passed with the support of 
“political odd couples;” as Pat Nolan, a former Republican leader in the California Assembly 
with roots in conservative politics and a PREA Commissioner, has noted, “[i]t was the late Sen. 
Edward M. Kennedy, a Democrat, and Sen. Jeff Sessions, a Republican, who j ointly co- 
sponsored the Prison Rape Elimination Act, which passed unanimously and was signed by 
President George W. Bush in 2003.”^"' PREA established the National Prison Rape Elimination 
Commission, which deliberated extensively and produced a report that includes specific 
recommended standards for immigration detainees.^^ 

PREA defines the term “prison” as “any confinement facility, of a Federal, State, or local 
government, whether administered by such government or by a private organization on behalf of 
such government.”^*’ Nearly a decade after PREA’s passage, however, ICE continues to resist 
direct application of PREA to immigration detention facilities, claiming that the agency’s own 
non-binding and unenforceable standards provide the same protections. On February 15, at a 
House Appropriations Homeland Security Subcommittee hearing. Secretary Napolitano stated 
that “we have issued proposed standards that exceed anything that would be - 1 think - issued 
under the Prison Rape Elimination Act.”^’ ICE Director Morton also recently touted ICE’s 
ability to comply with PREA on its own, saying: “[0]ur standards which we have just issued 
have a specific standard on the prevention and investigation of sexual abuse and we will be fully 
PREA-compliant . . . there is no daylight between PREA and where we want to be as an 


Human Rights Watch, Detained and At Risk: Sexual Abuse and Harassment in United States 
hnmigration Detention. (Aug. 2010), 3, available at 
httn:/Avww.linv.orn/sites/default/files/reDorts/us08l0vvebvveover.»df 

’’ See House of Representatives Committee on the Judieiary, Report on the Prison Rape Reduction Act of 
2003, 108th Cong., 1st sess. (2003); H.R. Rep. No. 108-219, at 14, available at 

http://frvvebnate.aeeess.gp o.no v/ci.h-bin/netdoe.eni2dbname~l08 eong renorts&doc.id"f:hr2 19. 108.ndf 
Connie Rice and Pat Nolan, “Policing prisons.” Los Angeles Times (Apr. 5, 2010), available at 
htto:.//artieles.latimes eoin/2010/’apr/05/oninion/I a-oe-rice5-2 0 10ap r0.5 

’’ National Prison Rape Elimination Commission, National Prison Rape Elimination Commission Report. 
(2009), available at httns://vvvvvv.ncirs.nov/Ddfi 51esl/226680.odf 
Prison Rape Elimination Act of 2003, 42 U.S.C. § 15609(7), available at 

http://wwwjusM.etcntipjij)rg4ipdf:PREA,pdf. 

” Hearing on the Fiscal 2013 Appropriations jor the Homeland Security Department Before the 
Subcommittee on Homeland Security of the House Committee on Appropriations, 1 1 2’’’ Cong. (20 1 2) 
(statement of DHS Secretary' Janet Napolitano), available at 
http://vvww.ca .com/doc,/congrcssioiialtranscripts-4030036 

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agency.”'* Even putting aside the fact that the 201 1 PBNDS do not have the force of law, they 
fall far short of those claims. 

The standards do make a number of much-needed, modest improvements to protect 
detainees against the threat of sexual assault. For example, they include an update to the policy 
on transporting detainees, like the victims at Hutto, prohibiting a single transportation staff 
member from transporting a single detainee of the opposite gender in all but emergency 
situations.*^ They also require a staff member of the same gender as the detainee to be present if 
a pat down is to be conducted.* The new standards provide that transgender detainees should be 
searched in private, a practice that might have spared Tanya some of the humiliation and hostility 
she allegedly encountered at Eloy. Further, the standards add new requirements that facilities 
adhere to a zero-tolerance policy for sexual abuse and assault, and that special consideration 
should be given to factors that would increase a detainee’s vulnerability in classification for 
housing assignments, including gender identity, disabilities, and history of torture, trafficking 
and abuse.*' 

The PBNDS are nevertheless deficient in a number of crucial ways, and to accept them as 
an alternative to direct coverage by PREA would be a serious mistake. First, the PBNDS are not 
enforceable. They are internal ICE policies, drafted without the opportunity for public comment, 
and as such are not legally binding on the agency. *‘ There is therefore no guarantee whatsoever 
that ICE will do a better job of self-policing than it has thus far. In contrast, the National Prison 
Rape Elimination Commission recognized the importance of enforcing standards through 
external review, stating in its report that “[ejven the most rigorous internal monitoring ... is no 
substitute for opening up correctional facilities to outside review.”*'* For this reason, the 
Commission recommended detailed audits of all facilities by independent auditors at least every 
three years. *'* The PBNDS provide no such requirement that outside parties verify 
implementation, and, considering ICE’s dismal track record, it would be credulous simply to 


Hearing on the Proposed Fiscal 2013 Appropriations for the Homeland Security Department 's 
Immigration and Customs Fnforcement Before the Subcommittee On Homeland Security of the House 
Committee on Appropriations. 1 12"’ Cong. 19 (2012) (statement of John Morton, ICE Director), 
available at 

http://www. micevliill.com/atUicliments, hinminntlion docunients/bosted documents/ 1 1 2th conyre ss/Traiis 
CfiDtOfIlouscApprooriationsSubcQmmiltcclIcaringOnFY13ICE.Approprialions.pdf 
PBNDS, supra, at § 1.3(II)(4). 

® Id. 

‘•' id. at§§ 2.11(II)(3), 2.2(V)(B) 

Lovisa SUmnow, When Good Isn't Enough. The Hufimgton Post (Mar. 6, 2012), available at 
llttp:/riywwhuffingtonppg,com/lpvisarStamio\jAvhen-gogd-isnt:enoughJiJ 31 7743^^ 

National Prison Rape Elimination Commission Report, supra, at 9. 


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trust that the agency will ensure compliance in every facility.'’^ After all, the Hutto facility 
already had a policy in place prohibiting opposite-sex solo transfers when the escort officer 
committed a string of assaults against female detainees. What wasn’t in place, however, was an 
adequate mechanism to oversee and enforce the facility’s compliance with that rule. The 2011 
PBNDS won’t change that. 

While the PBNDS commendably restrict strip searches conducted at intake by staff 
members of the opposite gender to the detainee, requiring that a staff member of the same gender 
be present, and that the search be documented,™ there is no similar opposite-gender requirement 
for body-cavity searches, which are even more invasive than pat down or strip searches. Only 
transgender detainees may choose the gender of the staff member conducting a body cavity 
search “whenever possible.” 

Strip searches are permitted after contact visits without any reasonable suspicion. A 
contact visit alone should not provide a basis for a strip search: a detainee should never have to 
choose between hugging his or her children during a visit or forgoing a contact visit altogether 
and avoiding a strip search. While a strip search is a demeaning and humiliating experience for 
any human being, male or female,’ . . . ‘there is reason to believe the practice may have a 
disproportionately harmful effect on women.’”*’’ As one detainee at the Bristol County 
Correctional Facility wrote to the ACLU of Massachusetts, “I was treated very inhumanely when 
I was arrested. First I was stripped completely and then asked to spread my legs wide apart over 
a mirror on the floor. I was made to cough and my breasts [were] lifted as if I am a drug dealer. 

It was a very humiliating experience for me.”^* In recognition of the humiliation and 
psychological harm caused by strip searches, a truly civil detention system would impose 
additional restrictions on strip searches to those contained in the 201 1 PBNDS. 

Not only do the 2011 PBNDS as a whole fail to provide any real transparency or 
accountability for facility conditions, but many of the improvements to the 2008 standards are 
also still inadequate and inferior to PREA. For example, ICE has introduced a new requirement 
that staff must limit the disclosure of information about a detainee who reports sexual abuse to 
include only “need-to-know” individuals — a positive step.**' However, the standard does not 


See generally A Broken System^ supra, vii (identifying “systemic problems witli the annual review 
procedures and their inadequacy for identifying and correcting noncompliance w ith the detention 
standards”). 

“ PBNDS, supra, at § 2.1(V)(B)(4). 

David M. Shapiro, “Does the Fourth Amendment Permit Indiscriminate Strip Searches of Misdemeanor 
Arrestees?: Florence v. Board of Chosen Freeholders:' 6 ClIARLES lON L. R. 131, Li 1 (Fall 2011) 
(citations omitted). 

ACLU of Massachusetts, Detenlion and Depor/a/ ion in IheAge of ICE: Immigrants am! Human Rights 
in Massachusetts . (Dec. 2008), 47, available at 

h ttp:./A vww.adun'i.oru.Aites/all,tfiles./education/acl u ice d etention report.pdf 
® PBNDS, supra, at §2.11 (n)(6). 


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specify what that means, nor does it provide for anonymous reporting by detainees or private 
reporting by staff, resulting in a toothless rule that does not encourage reporting.™ Similarly, the 
standards prohibit retaliation against detainees and staff who report sexual abuse,’* but don’t 
provide necessary guidance on how to prevent it.’^ When it comes to training, the standards 
require that all staff, contractors, and volunteers receive general training on sexual abuse 
response, but require no other advanced training for specialized staff, which may be necessary 
for responding to the needs of abuse survivors.' 

Such serious omissions crop up throughout the 2011 PBNDS. They fail to mandate 
background checks for hiring and promotions, an important tool for ensuring that detainees will 
not be placed with staff likely to abuse them.™ They are also deficient when it comes to 
procedures for conducting internal investigations of sexual abuse — requiring investigations but 
failing to assign responsibility for the process to a specific staff member, or to ensure that 
detainees who have reported abuse are informed about the status of the investigation.’’ ICE also 
missed an opportunity to require that facility leadership review these investigations and 
affirmatively seek to reduce abuse.’*’ 

Finally, even if properly implemented, the standards leave detainees with extremely 
uneven protection. The 201 1 PBNDS only apply to some facilities, excluding those holding 
detainees for less than 72 hours.” PREA, by contrast, specifically includes short-term detention 
because, as the PREA Commission concluded, “[n]o period of detention, regardless of charge or 
offense, should ever include rape.”’* Detainees’ safety from sexual abuse under the 2011 
PBNDS will depend on where they have the fortune, or misfortune, of being housed. Under 
PREA, meanwhile, immigration detainees would receive the same protection against sexual 
abuse and assault in a temporary lockup as they would at any other facility. 

ice’s internal sexual assault and abuse standards, though a necessary improvement, are 
still fraught with serious problems and are no substitute for enforceable national PREA 
standards, which must be applied to every immigration detainee, just as they are to all other 
persons in government custody. While the proposed Department of Justice (DOJ) PREA 
regulations issued in February 2011 specifically excluded immigration detention facilities from 


™ See Stannow, supra. 

” PBNDS, supra, at § 2.1 l(V)(F)(6). 

™ See Stannow. supra. 

Id. 

Id. 

’’ Id ; see also PBNDS, supra, at § 2. 1 1(V)(J). 

™ See Stannow, supra. 

’’PBNDS, supra, at §2.1 1(1). 

National Prison Rape Elimination Commission, Standards for the Prevention, Detection, Response, and 
Monitoring of Sexual Abuse in Lockups. (2009), 1, av'ailable at 
bttpsvVwwvv.ncirs.gov./adfliics 1 / 22668.0 .pdf 


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coverage,™ since then a broad bipartisan group of politicians, advocates, and correctional experts 
have voiced support for applying PREA to immigration detention facilities. This includes the 
bill’s original lead House co-sponsors. Representatives Frank Wolf (R-VA) and Bobby Scott (D- 
VA), who have publicly and repeatedly stated that PREA was meant to include all immigration 
detainees and facilities, with no second-class coverage.*” As the National Sheriffs’ Association 
has advised Congress, “DHS PREA standards need to be consistent with DOJ PREA standards. 
This would ensure that there are not differing standards for jails based on the federal, state, or 
local detainees held, as well as help with the swift and successful implementation of final PREA 
standards.” 

The PBNDS’s deficiencies combined with ICE’s abysmal track record demonstrate that 
leaving ICE to its own standards is not a real solution. The problem of sexual assault and abuse 
in immigration detention is extremely urgent, and it is vital that the Obama Administration cover 
immigration detainees under DOJ’s PREA rules, so the Claudias, Sarahs, and Tanyas who are 
vulnerable in immigration detention today don’t have to wait any longer for the basic protection 
they deserve. 

V. Medical and Mental Health Care 

White the PBNDS provide long-overdne minimal .standards of medical and mental health care, 
they are not complete or consistently compliant with accepted correctional standards of care. 

Under the Constitution’s Fifth Amendment, immigration detainees have a right to receive 
necessary medical care and to be free of unsafe and punitive conditions.*^ While the law varies 
in different parts of the country, the ACLU agrees with appellate decisions, based on 
longstanding Supreme Court precedent, that conditions of confinement for civil detainees must 
be superior not only to convicted prisoners, but also to pretrial criminal detainees.** If a civil 
detainee is confined in conditions that are identical to, similar to, or more restrictive than those 
under which pre-trial detainees or convicted prisoners are held, then those conditions are 


™ Department of Justice, Notice of proposed rulemaking re: National Standards To Prevent, Detect, and 
Respond to Prison Rape. 76 Fed. Reg. 6248, 6250 (Feb. 3, 2011). 

Letter of December 1 2, 201 1 , available at httjjyAyyvvyjustdetention.prg./pdf'cpngre.^^^^^ 

Letter to Senators Lealiy and Crapo, February' 1, 2012, available at 

littp://v.'\vw.slicrifrs.org/sitcs/dcfault/tilcs''uploads/doc.umcnts/’va\va%2flrcauthorization%201cttcr%20- 

'Jl>20senale,pdf 

See. e.g., Esielle v. Gamble, 429 U.S. 97 (1976); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 

2000); Dahlan v. DHS, 215 Fed. App’x 97, 100 (3d Cir. 2007). 

Jones V. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004), cert, denied, 546 U.S. 820 (2005); ef. Youngberg 
V. Romeo, 457 U.S. 307, 321-32 (1982) (’’Persons who have been involuntarily committed are entitled to 
more considerate treatment and conditions of confinement than criminals whose conditions of 
confinement arc designed to punish.”). 


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presumptively punitive and unconstitutional.*'* Civilly confined persons should not need to 
prove deliberate indifference to demonstrate a violation of their constitutional rights.*’ 

a. ICE has mistreated countless detainees with inadequate or nonexistent medical and 
mental health care. 

As Director Morton’s recent testimony acknowledged, some of the worst failures in ICE 
detention facilities are related to medical care. The ACLU’s affiliates and national litigation 
projects have documented cases of numerous detainees harmed by ICE’s deficient medical and 
mental health care. Here are but a few examples: 

• A legal resident of the United States who fled civil war in £1 Salvador at age 10, 
Francisco Castaneda was placed in a San Diego immigration detention facility in 2006. During 
his detention, Mr. Castaneda recounted, he suffered from excruciating pain caused by a draining 
penile lesion and a lump on his groin. Despite repeated doctors’ requests for Mr. Castaneda to 
have a biopsy, the Division of Immigration Health Services (DIHS) failed to conduct it. Mr. 
Castaneda was told his treatment was unnecessary because it was “elective in nature.” He was 
prescribed ibuprofen and antibiotics and given extra boxer shorts. It took a fourth specialist’s 
recommendation - 10 months after Mr. Castaneda first asked for attention and only with ACLU 
intervention - before the biopsy came close to happening. Even then, instead of giving Mr. 
Castaneda proper medical care, ICE released him. One week later, a biopsy Mr. Castaneda 
arranged himself confirmed that he was suffering from penile cancer. The next day, Mr. 
Castaneda had his penis amputated. He started chemotherapy after learning that the cancer had 
spread to his groin. Treatment was unsuccessful, and Mr. Castaneda died in February 2008. 

Francisco Castaneda made the most of his remaining year after being freed. He testified 
before Congress, alongside bereaved relatives of immigrants who had died in ICE detention, 
saying “I have a young daughter, "Vanessa, who is only 14, She is here with me today because 
she wanted to support me - and because 1 wanted her to see her father do something for the 


Jones, 393 F.3d at 934; of. Af^’eman v. Corrs. Carp, of Am., 390 F.3d 1101, 1104 (9tli Cir. 2004) 
(noting tliat detention on noneriminal eharges “may be a cruel necessity of our immigration policy; but if 
it must be done, the greatest care must be observed in not treating the innocent like a dangerous 
criminal’’). 

Jones, 393 F.3d at 934; see also Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir. 2007) (“|T|he Eighth 
Amendment provides too little protection for those whom the state cannot punish.” (emphasis in original, 
citations omitted)). Tliis is consistent with the Supreme Court's view that a trial court “erroneously used 
the deliberate-indifference standard” when instmeting the jury- that the plaintiff - a civ illy committed 
individual - had to prove deliberate indifference to his serious medical and mental health needs in order 
to prevail on that claim. See Youngberg, 457 U.S. at 312 n.l 1. 

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greater good, so that she will have that memory of me. The thought that her pain - and mine - 
could have been avoided almost makes this too much to bear.”*'" 

• Victoria Arellano, a 23-year-old transgender woman with AIDS, was arrested on a 
traffic violation. She was sent to the detention facility in San Pedro, California where she alleges 
she was denied her AIDS medication and medical care for more than a month despite the 
symptoms she suffered, including extreme pain, fever, vomiting blood, and diarrhea with blood. 
As a newspaper account recalled, “[t]he task of caring for Arellano fell to her fellow detainees. 
They dampened their own towels and used them to cool her fever; they turned cardboard boxes 
into makeshift trash cans to collect her vomit. As her condition worsened, the detainees, 
outraged that Arellano was not being treated, staged a strike: They refused to get in line for the 
nightly head count until she was taken to the detention center’s infirmary.”*’ Only then did ICE 
send Arellano to a hospital where she died two days later. 

• Angela, a 40-year-old Jamaican woman, has been a lawful resident for 33 years. She is 
blind in one eye and suffers from a painful and recurring skin disease. Upon her detention in 
Eloy, Arizona, she provided her medical history. Over the course of her four-month detention, 
Angela recounted, she began to experience significant pain and swelling of her face. Despite 
multiple requests for pain medication and attention from a doctor, she says she was not provided 
care until she fainted in her housing unit and was rushed to a local hospital. She remained in the 
hospital for several days and was given intravenous antibiotics. Angela filed a grievance with 
the detention center about their untimely response to her medical needs. Soon after she filed her 
grievance, she was released from custody.** 

• The New York Civil Liberties Union’s report on the now-closed Varick Street detention 
facility detailed the case of a detainee suffering from prostate cancer who filed a grievance in 
November 2008, describing an aborted attempt to deport him two days after he had requested a 
doctor’s appointment for cancer treatment. The detainee, a 47-year-old Russian man, wrote of 
being forced to sit in a van at Kennedy International Airport for several hours with excruciating 
pain in his lower abdomen. He maintained that security guards refused his pleas to use a 
restroom and accused him of playing games. The pain w'as so great that he nearly lost 
consciousness and didn’t recall how he returned to Varick Street. DIHS responded to the 
detainee’s complaint by telling him that staff had made three unsuccessful attempts to contact the 
hospital to which he had been referred for treatment before his detention. Three weeks later, the 
detainee still had not visited a doctor. He filed another grievance expressing alarm and 


Gabriel Ebcr, ‘■Remembering Francisco Castaneda.” (May 5, 2010), available at 
http://www,aciu,org/blo£/jmniigrante~nlg|itsrprisoneis^|ghts;ie!nembenrig-fi'ancisco-ca^^^^^^ 

* Sandra Hernandez, ‘‘A lethal limbo: Lack of healthcare turns federal detention into a death sentence for 
some immigrants.” Los Angeles Times (June 1, 2008), available at 
httn ://articles .lalimes . com/200 S/i im/0 1 /opinion/op-h eman dez 1 
ACLU of Arizona, In Their Own Words, supra, at 29. 

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frustration at his inability to receive treatment. “How long or when will you be able to get [my] 
appointment, will it be after [my] death?” he wrote. According to a handwritten note on the 
grievance form, the detainee was deported two weeks later. It is unclear whether he ever 
received medical care.*^ 

• Despite complaining for months to prison officials at the no-longer-used Wyatt 
Detention Center in Rhode Island about being in excruciating pain, Hiu Lui Ng was only first 
diagnosed with terminal liver cancer and a broken spine less than a week before he died. Until 
that time, Ng alleges, guards and medical personnel at Wyatt continually accused him of faking 
his illness. He was routinely denied use of a wheelchair despite his inability to walk, including 
when his attorney, who had traveled from New York, sought to visit him. Only a week before 
Ng died, immigration officials forced him to travel to Hartford, Connecticut for no legitimate 
reason, where he was urged to drop his appeals. To get him to Hartford, guards forcibly dragged 
Ng out of his cell, shackled his hands, feet and waist, and dragged him to a transport van, despite 
his screaming in pain. The cruel treatment he received at that time was captured, in part, on 
videotape.* The ACLU of Rhode Island has filed a lawsuit on behalf of Mr. Ng’s surviving 
relatives. 


• A comprehensive report issued in July 2010 by the ACLU and Human Rights Watch 
concluded that “immigrants with mental disabilities are often unjustifiably detained for years on 
end, sometimes with no legal limits.”*' One detainee, a lawful permanent resident from Haiti 
with schizophrenia who was hospitalized before his arrest by DHS, was sent to an in-patient 
psychiatric facility at least four times while at a Texas immigration detention facility, causing 
him to miss several hearings. At the time he was interviewed, he had been detained for one year 
and said he still heard voices and attempted suicide twice w’hile in detention. 

• The ACLU of Massachusetts reported on Albert, a 27-year-old man from Liberia with a 
documented history of schizophrenia. During his 21 months in detention, he faced a variety of 
medical problems that W'ent untreated. He complained that he sometimes spent days without his 
psychiatric medications and says he was often told by the nurses that they had run out. When he 
w'as transferred to Bristol County Correctional Facility, he wasn’t given any of his medication 
during transit, and says he he spent four days without it. Albert began experiencing a painful 
skin condition and received a cream that proved effective. One day, he w'as disciplined for using 
obscenities against guards and not having his door locked during the head-count. He w'as 


®Nc\v York Civil Liberties Union (NYCLU), Voices from Varick: Detainee Gricvanecs at New York 
City's OnN Federal Immigration Detention Facility. (2010), available at 
httDv'/www.mclii.org/liics/pubiications.Y'arick Report final. pdf 
“Rhode Island ACLU Files Lawsuit on Behalf of Family of Wyatt Center Detainee Who Died in 
Custody; Suit Alleges Hiu Lui Ng Was Subjected to ‘Cruel, Inhumane, Malicious and Sadistic 
Behavior.”' (Feb. 9, 2009), available at httD://vTOw .riac iu.ont.''Ne\vs/Release s/20090209. htm 
Deportation by Default (July 2010), available at 
http:,l/wvvw.hr\v.org/cnj'rcports/2010/07/26/deportation-dcfault-0 

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punished with 20 days in segregation. The disciplinary report made no mention of his 
schizophrenia or the fact that he had not been getting the medication on a regular basis. 

Transferred to a third facility, Plymouth County Correctional Facility, Albert’s medical 
records and prescription medication again did not accompany him. Flis skin condition worsened. 
At one point, the pain was so bad that he says he had trouble walking and could not climb onto 
his top bunk. He was treated with creams that did not work. An ACLU attorney intervened by 
sending a letter to the facility. Albert was called down to the medical unit and told he would be 
put in a medical cell until further notice, without a phone or recreation time. According to the 
officer on duty, Albert became upset and used profanity. The officer called for two other officers 
to come to the area and when Albert refused to drop the crutches he was using, they allegedly 
took the crutches and forced him to the floor. A disciplinary report states that Albert kicked 
while on the floor, so leg irons were applied and he was placed in a restraint chair where he 
stayed for three hours, shackled, bleeding and in pain from his skin condition. He was then sent 
to the segregation unit. He was in segregation for six days while his disciplinary case was heard. 
He was sentenced to 18 days of isolation and 30 days of loss of privileges. There is no mention 
of his psychiatric condition in the disciplinary reports or contemporaneous medical notes. 

When he returned to a cell in the general population, his skin condition did not improve. 
Albert’s relationship with the medical staff deteriorated and at one point he says they stopped 
believing that there was anything wrong with his skin. Albert wrote in a letter to the ACLU that 
the physician’s assistant had told him not to fdl out any more medical request slips because there 
was nothing wrong with him. Meanwhile, the ICE officer at the jail told Albert that even though 
his country would not accept him, he would have to wait 180 days in jail before being released. 
He pleaded with ICE officials either to treat him or let him go - he had resources to pay for his 
own treatment if he were released. Finally, in February 2008, seven months after Albert entered 
Plymouth and complained of skin problems, the jail doctors requested that ICE approve a 
hospital consultation. When Albert asked when he would be sent to the hospital, the medical 
staff allegedly told him that ICE would not pay for him to see a doctor because he was going to 
be released soon. The consultation was ordered on February 1 1th and Albert was not released 
until March 3 1st. Shortly after being released, Albert saw a private doctor, who found that 
Albert suffered from a fungal infection and prescribed medication. 

• The ACLU of New Mexico reported a case of a detainee named Abel, who slipped and 
fell when he stepped in water that he said had leaked from the ceiling onto the floor of the 
dormitory at the Otero County Processing Center, which is operated by the private prison 
contractor Management and Training Corporation (MTC). He injured his arm in the fall, causing 
what Abel described as unbearable pain. Concerned that his arm might be broken, Abel asked 
for assistance. Staff reportedly told him to fill out a “sick call,” though Abel thought it obvious 
that his arm was broken. He filled one out, but had already missed his last opportunity to submit 
it that day. He didn’t want to wait until morning. He approached the medical staff when they 


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came around to distribute medications and asked if he could have something to mitigate his pain. 
Abel reported that the medical staff required the sick call, and he waited three days for an 
appointment. According to Abel’s report, when he was finally seen, the doctor immediately 
recognized that his arm was broken. Abel was taken to hospital in El Paso and ultimately needed 
surgery to repair the damaged arm. Following the surgery, Abel reported that he did not receive 
adequate follow-up care. At the time the ACLU of New Mexico met with Abel, he claimed that 
his arm still hurt badly but luckily was not infected. ICE eventually released Abel, but he 
reported that his injury has affected his mobility and ability to find work.^ 

b. While there are positive features to the PBNDS’s medical and mental health standards, 
they also contain omissions that endanger detainees. 

ice’s 2011 PBNDS go some distance in establishing a template which, if implemented, 
will improve medical and mental health care from the egregiously low baseline set by ICE’s 
historical practice. However, the standards remain woefully insufficient. The ACLU’s Woods 
class action litigation regarding the San Diego Correctional Facility (SDCF) detailed the cases of 
1 1 named plaintiffs who suffered a variety of serious medical and mental health issues that went 
untreated, including several with bipolar disorders and depression, a man who was forced to wait 
more than eight months for eye surgery and nearly suffered permanent disfigurement, and 
detainees who never received medical attention despite suffering from a variety of maladies 
including Type 2 diabetes, hypercholesterolemia, hypertension, abscessed and broken teeth, and 
severe chest pains. In settling the case, ICE committed to adhering to 19 of the standards 
promulgated by the National Commission on Correctional Health Care (NCCHC), standards 
which have been endorsed by the American Medical Association.*^ 

It is troubling, therefore, that the 201 1 PBNDS deviate in significant respects from the 
NCCHC standards, including from some that were included in the Woods settlement.*'* For 
example, in Woods ICE agreed to NCCHC standard J-E-07, which requires specific time frames 
in which post-triage sick call encounters must occur.*" Yet the new ICE standard states that staff 
will “determine when the detainee shall be seen based on acuity of the problem.”'*’ Thus, a 
patient who complains of a serious medical condition may be triaged as needing a high-priority, 

ACLU of New Mexico, Outsourcing Respomihility: The Human Cost of Privatized Immigration 
Detention in Otero Countyr (2011), 46, available at h ttD:/'/'aclu-nm .or«/wD- 

cqotent/iqiloads.i201 

The Woods v. Morton settlement agreement is available at httn:/Avww. aclu. ore/files/assets/20 10-1 2- 16- 
WoodsvMorton-ScttlcmcntAErccment.pdF . Two years earlier, tlic ACLU settled a separate litigation 
focused on overcrowding at the San Diego Correctional Facilityr See Kiniti v. Myers. No. 05-cv-1013 
(S.D. Cal. June 4, 2008), available at littD:.6'vvww.aclu.org./filcs/imagcs/assct upload filc979 3.1.530.pdf 
” For details regarding all the NCCHC standards here referenced, see ACLU of San Diego, “Practice 
Advisorw Hcaltli Care for ICE Detainees after tire Woods v. Morion Settlement.” available at 
http; WWW aclusand.i.e:go,prg/artic|eJownipads/()OJ 165/W'pods%20Practice“k2(Adyisoty,pd^^ 

See NCCHC, 2008 Standards for Health Services in Jails. 

* PBNDS, supra, at § 4.3(V)(Q). 


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as-soon-as-possible visit with the facility practitioner, but the standard provides no guidance or 
requirement as to when that visit must occur. In contrast, the NCCHC standard requires that 
patients be seen within 24 hours of triage (72 hours on weekends).'” 

Another NCCHC standard accepted by ICE in Woods was J-D-02 (Medication Services). 
The 2011 PBNDS, however, are far less stringent in addressing best practices for detainee 
medication services. In stating that “[d]etainees who arrive at a detention facility with prescribed 
medications or who report being on such medications, shall be evaluated by a qualified health 
care professional as soon as possible, but not later than 24 hours after arrival, and provisions 
shall be made to secure medically necessary medications,”^* this standard places patients at risk. 
NCCHC requires more exacting medication continuity, emphasizing that all inmates who are on 
prescription medication when they enter the facility must ‘‘continue to receive the medication in 
a timely fashion as prescribed” or an alternative.” The ACLU is also concerned about the 
PBNDS’ s provisions on medication delivery, which provide that “[i]f prescribed medication 
must be delivered at a time when medical staff is not on duty, the medication may be distributed 
by detention officers, where it is permitted by state law to do so, who have received proper 
training by the HAS [Health Service Administrator] or designee.”'” Medications should never 
be administered by anyone other than health care staff Given the frequency of twice-daily 
dosing, there will be a significant number of detainees who will need medications administered 
in the evening. At many facilities, there may be no health care staff on site at this time. 

While agreeing in Woods to NCCHC standard J-E-06 on oral care, which states broadly 
that oral treatment must be available when, in thejudgment of a dentist, lack of treatment would 
harm an inmate’s health, ICE has restricted routine oral care to detentions exceeding six months 
and kept its provision optional: “Routine dental treatment may be provided to detainees in ICE 
custody for whom dental treatment is inaccessible for prolonged periods because of detention for 
over six months.”"" This fails to take account when a detainee last received dental treatment, 
which may have long preceded the first day of incarceration. Dental care has long been a serious 
deficiency in ICE detention; one example reported by the ACLU of New Mexico involved a 
detainee who was told that he needed to be in detention for a year to obtain dental care. “He had 
been in the facility for nearly two years and stated that he did not receive adequate dental care. 

He had six teeth pulled during his detention in Otero. . . . Nabid, a [second] detained immigrant 
explained, ‘Dental health is not taken seriously and rather than filling a cavity, they will pull the 
teeth.’”'"’ 


” Standard J-E-07, supra. 

* PBNDS, supra, at § 4.3(V)(S). 

® See Standard J-D-02; see also NCCHC, “Spotlight on the Standards: Medication Services.” 
CorreciCare (Spring 2009), available at httD:/Av'vw.ncchc.org/rcsoui'ccs/sDotligli {122 -2 .html 
■" PBNDS, supra, at § 4.3(V)(S). 

7(7. at § 4.3(V)(P). 

'“’ACLU ofNcw Mc.'dco, Outsourcing Responsibility, supra, at 50. 

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The manifold medical and mental health failures in ICE detention chronicled by the 
ACLET and others are therefore only partially addressed by ICE’s 20 1 1 PBNDS. The crucial 
stage of medical and mental health screening of new arrivals is covered by a new standard that 
patients giving affirmative responses to screening questions about “acute or emergency medical 
conditions” shall be evaluated “as quickly as possible, but in no later than two working days.” 
This is not within the standard of care.*”’ Patients reporting emergency medical conditions or 
symptoms consistent with such conditions must be sent immediately to the local emergency 
department for evaluation. Patients reporting urgent conditions must be seen by a provider 
within a time frame appropriate to their acuity. A categorical “no later than two working days” 
time frame, which could stretch to five days over a holiday weekend, is inappropriate. At intake, 
and throughout detention stays, moreover, the PBNDS should clearly specify that detainees must 
have access to all medically necessary diagnostic services such as offsite radiology, or biopsy, 
with strict timeliness compliance required and monitored. 

In addition, the standard on required mental health services is deficient, in part because 
access to specific treatment modalities is not required. NCCHC Standard J-G-04 requires that, 
regardless of a facility’s size or type, on-site individual counseling, group counseling, and 
psychosocial programming be provided."*' The PBNDS requires none of these. The ACLU also 
recommends adherence to NCCHC Standard J-l-01, the substance of which is already 
incorporated into the PBNDS on housing persons at risk for suicide,"*” with respect to medical 
isolation and restraints: these must be interventions of last resort, by physician order only, for the 
shortest time necessary with an individual treatment plan developed. 

Finally, ICE is to be commended for including a quality assurance component titled 
“Health Care Internal Review and Quality Assurance.”*”’ This standard, however, does not 
require formal Continuous Quality Improvement (CQI) activities or clinical performance 
enhancement reviews, both of which are key elements of an adequate quality assurance program. 

VI. Women’s Health 

If fully implemerned and enforced, the PBNDS wilt help ensure that women in ICE detention 
receive necessary, potentially Kfe-scn’ing services. 

Consistent with constitutional and professional standards, ICE is obligated to address 
adequately women’s unique health care needs, including gynecological, reproductive, and 
obstetrical health care. By improving access to appropriate and necessary health care for women 


at § 4.3(V)(]). 

See NCCHC Standard J-E-02; John M. Raba, Intake Screening dl Periodic Health Evaluations, in 
Clinical Practice in Correctional Medicine (2d ed.) 41, 42A3 (Michael Pnisis, ed. 2006). 

See NCCHC, “Spotliglit on tlic Standards: Basic Mental Hcaltli Services.” CorreclCare (Summer 
2010), available at littD://www.ncehc.ori>;'resources/sp otligh t/24-3.htm! 

PBNDS, supra, at § 4.6. 
at § 4.3(V)(BB). 


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in TCE custody, the 20 1 1 PBNDS, if fuily implemented and enforced, will help to ensure ICE 
policies satisfy basic legal standards. 

These guidelines are a long time coming. Currently, we are witnessing the extended 
detention of increasing numbers of women, including those who are pregnant, nursing, and sole 
caretakers of their families. For medical reasons, to preserve family unity, and for other 
humanitarian reasons, the vast majority of these women should not be detained. ICE Director 
Morton has correctly recognized that “[ajbsent extraordinary circumstances or [what ICE 
understands to be] the requirements of mandatory detention, field office directors should not 
expend detention resources on aliens who [are] pregnant, or nursing, or demonstrate that they are 
primary caretakers of children.” However, until alternatives to detention are arranged, ICE 
must provide women in immigration detention with a comprehensive range of reproductive 
health services and options. Although as internal ICE standards the 2011 PBNDS lack the 
enforceability of binding regulations, they represent an important step towards that ultimate goal. 

Previous ICE policies did not address critical reproductive health needs such as 
emergency contraception, freedom from restraints during labor and delivery, and access to 
abortion services. Indeed, the devastating impact on the health and fundamental rights of women 
immigration detainees has been well documented by investigations revealing inadequate medical 
care and related problems.*'’* In fact, until the 201 1 PBNDS were issued, ICE policies and 
practices addressing reproductive and obstetrical care afforded less protection for the health and 
rights of women in ICE custody than was available to women in the custody of the Federal 
Bureau of Prisons (BOP).*** 

Not only did the lack of adequate policies unnecessarily threaten women’s health - 
including maternal and fetal health - but it also exposed ICE to legal liability. For example, in 
the ACLU’s Woods class action litigation, one of the named plaintiffs, Marta Monteagudo- 
Guerrero, did not menstruate for the first four months of her detention. She alleged that she 

requested to see a gynecologist to discuss . . . problems with her menstrual cycle, 
but did not receive an appointment . . . until the end of May 2007, several months 
after the problem appeared to resolve itself At that visit, [CCA-run San Diego 


"’Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens.” 
(Mar. 2, 2011), available at litl n:/,b\ v\vv .ice.aov / doclib/ne ws/relcases/20 1 l./l 1 0302washinHtoiidc.Ddf 
™ See, e.g.. Human Rights Watch, Detained and Dismissed: Women 's Slntggles to Obtain Health Care 
in United States Immigration Detention (March 2009), available at 

htti3:/./vvwvv.hivv.orr;/civ'rcpofts/2009./03.'T6./dctaincd-and-dismisscd : University of Arizona Southwest 
Institute for Research on Women, Unseen Prisoners: A Report on Women in Immigration Detention 
Faeililies in Arizona (January 2009), available at htto://sirow .arizona.edu/lrlcs/UnsccnPrisoncrs.odf : 
Florida Immigrant Advocacy Center, Dying for Decent Care: Had Medicine in Immigration Custody 
(March 2009), available at htto: /./www .fiacfl a.Qin/r eDQTls/DvingF orDeccntCare.ndf 

See, e.g., 28 C.F.R. §§ 5.51.21-23, 570.41, und Program Statements 5200.01, 5538.05, 6070.05. 

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Correctional Facility] staff informed her that the facility does not provide 
detainees with referrals to gynecologists and does not cover pap smears '" 

In a case arising at the Eloy Detention Center, the ACLU of Arizona documented the case 
of a detainee named Helen who was held for one month: 

For almost the entire lime she was detained, she experienced severe 
vaginal bleeding. She filed medical requests and told staff that this was not 
normal for her monthly period, but they still did not consider her situation a 
medical emergency. The bleeding became so severe that Helen experienced 
blurred vision, fainting, and could not walk. Helen continued to file requests to 
see a doctor. Ultimately, detention ofFtcers called a medical emergency and Helen 
was taken to a local hospital, where doctors performed a complete 
hysterectomy."^ 

ice’s settlement of the Woods litigation committed to providing all necessary health care to 
immigration detainees beyond just emergency care, at least for its San Diego facility, and the 
settlement also specified that ICE “must offer prenatal care (including medical exams, lab and 
diagnostic tests, and counseling), postpartum care, and obstetrical services when necessary.”'"' 
The 2011 PBNDS are essential to ensuring that ICE complies with minimum legal standards for 
the treatment of detainees nationwide. 

a. ICE is constitutionally obligated to provide women with access to appropriate and 
adeqnate health services iit a timely manner, consistent with the professional standard of 
care. 


The Fifth Amendment guarantee of adequate medical care described above necessarily 
encompasses women’ s unique health needs, including gynecological, reproductive, and 
obstetrical health care. For instance, federal and state courts have consistently held that the right 
to decide whether to continue or terminate a pregnancy is not lost as a condition of 
confinement." Thus, under the Fifth Amendment, ICE is obligated to ensure that women in 
immigration detention can access abortion services. Similarly, because the use of physical 
restraints on pregnant women, particularly when they are in labor, delivery and post-partum 


Woods Complaint, supra. 

ACLU of Arizona, In Their Own Words, supra, at 30. 

See Woods v. Morion. No. 08-55376 (9**’ Cir. 2010) (Dec. 16, 2010 settlement agreement), available at 
http://www.aclu. org/filcs/asscts/zOlO-O-lO-WoodsvMorton-SctticmciitAgrccmcnt.pdf 

See, e.g..Roev. Crair/hrt/, 514 F.3d 789 (8''' Cir. 2008), cert, t/cniet/, 129 S. Ct. 109 (2008); Doc v. 
Arpaio. 150 P.3d 1258 (Ariz. Ct. App. 2007), cert, denied. 128 S. Ct. 1704 (2008); Bryant v. Ma(fucei. 
923 F.2d 979 (2d Cir. 1 991 ); Monmouth County Corr. Institutional Inmates v. Lanzaro. 834 F.2d 326 (3d 
Cir. 1987); Roe v. Leis. No. C-1-00-651. 2001 WL 1842459 (S.D. Ohio Jan. 10, 2001), Dot- v. Barron, 92 
F. Supp. 2d 694 (S.D. Ohio 1999). 


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recovery is dangerous to their health and lives, this practice violates the Fifth Amendment right 
to be free from inhumane treatment.'*" Indeed, a federal court jury recently awarded $200,000 in 
damages to a pregnant woman taken into immigration custody by the defendant, one of ICE’s 
287(g) immigration enforcement program partners, who shackled her during and after labor and 
delivery."^ 

b. The 2011 PBNDS on women’s health are consistent with professional standards and 
existing federal law and policy. 

As noted in the 201 1 PBNDS, the new guidelines are based on standards set by the 
NCCHC and the American College of Obstetrics and Gynecology, ' and are comparable to, 
though still not on par with, those standards enforced by the BOP."* For example, the 201 1 
PBNDS make available routine age- and gender- appropriate reproductive system evaluations, 
pelvic and breast examinations. Pap smear and STI tests, and mammograms, as well as access to 
contraceptive services, if desired."’ Because it is well-settled as a legal matter that pregnancy in 
detention constitutes a special need and requires close medical supervision, the 2011 PBNDS 
require ICE: (a) to provide female detainees with access to pregnancy testing, nondirective 
options counseling, and health services in accordance with their expressed decisions regarding 
the pregnancy, whether they plan to carry to term or decide not to continue the pregnancy; (b) to 
provide ongoing prenatal care, specialized obstetrical care for high-risk pregnancies or 
complications, and safe and timely access to a medical facility for labor and delivery over the 
course of their pregnancies, and (c) to ensure that women who choose to terminate their 
pregnancies have access to a health provider for abortion care.'^’ As the Los Angeles Times has 
pointed out with regard to the 201 1 PBNDS’s abortion provisions, “federal prisons provide 

See Villegas v. Davidson County, 2011 WL 1601480, *24 (M.D. Tenn. 2011) (the “shackling of a 
pregnant detainee in tire final stages of labor shortly before birth and during the post-partum recovery 
violates the Eighth Amendment’s standard of contemporary decency”); see also Nelson v. Corn. Med. 
Sen’s., 583 F.3d 522, 533 (8th Cir. 2009) (denying summary judgment for officer because shackling 
pregnant prisoner during labor clearly established as a violation of the Eighth Amendment); Women 
Prisoners of D.C. v. District of Columbia, 93 F.3d 910. 918, 936 (D.C. Cir. 1996) (correctional authorities 
camiot use “restraints on any woman in labor, during delivery, or in recovery immediately after dc 
livery;” prison did not challenge district court’s conclusion that “use of physical restraints on pregnant 
women . . . violatc[s] the Eighth Anicndmcnf’): Brawley v. Stale of Washington, 712 F. Supp. 2d 1208, 
1221 (W.D. Wash 2010) (denying summary judgment because shackling a prisoner in labor is clearly- 
established as a violation of the Eighth Amendment). 

' ' ^ See Woman Shackled During Labor Awarded Damages b'rom Deputies, USA T oday (Aug. 18, 2011), 
available at httn:/-Avww usatodav.com/news/nation/2011-08-19-tennessee-woman-shackled-labor- 
damages n.htm 

PBNDS, supra, at § 4.4. 

For example, tlic BOP clinical standards for women’s health arc considerably more comprehensive 
than the PBN DS, particularly with regard to preventive services such as mammograms, screening for 
STDs, and Pap smear tests. .See BOP, Preventive Health Care: Clinical Practice Guidelines . (July 2011), 
available at httpi/./www.bop.gov/news/PDFSi'Dhc.pdf 

PBNDS. supra, at 5 4.4(V)(D). 

''‘-°Id. at § 4.3(V)(E)(2). 


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nearly identical [abortion] access.”'^' Finally, the 201 1 PBNDS ensure that physical restraints 
are used on pregnant women only in extraordinary circumstances, and are never used on women 
in active labor or delivery.'^* 

These guidelines reflect common sense, compassion, and the bare minimum required by 
the U.S. Constitution. If fully implemented and enforced, the guidelines will help ensure that 
women in ICE detention receive necessary, potentially life-saving services. 

Vll. Hormone Therapy 

The PBNDS on hormone therapy provides a positive starting point, but ICE also needs to ensure 
proper training for facility staff. 

The 2011 PBNDS include a provision that “[tjransgender detainees who were already 
receiving hormone therapy when taken into ICE custody shall have continued access. All 
transgender detainees shall have access to mental health care, and other transgender-related 
health care and medication based on medical need. Treatment shall follow accepted guidelines 
regarding medicaliy necessary transition-related care.”'^’ While this standard provides a positive 
starting point, ICE needs to do more to ensure that problems arising in the past, such as refusing 
to start people on hormone therapy who weren’t on it prior to being detained even if the 
medication is medically necessary; refusing to continue people on hormone therapy if no medical 
records can be produced to show that the therapy was prescribed by a doctor prior to the person 
being taken into custody; failing to have medical staff who are experienced at treating Gender 
Identity Disorder (GID); and failing to refer inmates with gender issues to persons outside the 
facility who have such experience, resulting in detainees with GID being denied competent 
evaluations or treatment. 

For example, Romeo Fomai, a named plaintiff in the ACLU’s Woods class action, was 
taking hormone therapy for GID since 1986. When he was transferred to SDCF in December 
2006, Mr. Fomai alleged that facility staff confiscated his 30-day supply of hormones and placed 
them in storage with the rest of his personal property. While at SDCF, Mr. Fomai said he was 
repeatedly denied hormone therapy, pursuant to DIMS policy. After being taken off hormone 
therapy, Mr. Fomai experienced the physical symptoms of withdrawal, such as extreme pain in 
his breasts, hair loss, hot flashes, weight gain, and decreasing breast size. He became 
increasingly depressed and withdrawn, a particular concern because Mr. Fomai has a history of 
depression and was placed in a padded room at a prior correctional facility after slicing his wrists 


Editorial, "’Immigration's loose mles of detention.” Los Angeles Times (Mar. 18, 2012). Compare 
PBNDS, supra, at § 4.4(V)(E)(2) with BOP, “Female OEfcndcr Programs,” available at 
http;//www.bop.gp\2mmate piograms/'fenialejsp 
PBNDS, supra, at § 4.4(V)(E). 
at § 4.3(V)(U). 


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in a suicide attempt. The Seventh Circuit Court of Appeals recently held that a Wisconsin law 
prohibiting any hormonal or surgical treatment to change a person’s sex characteristics was 
facially unconstitutional, noting: “Surely, had the Wisconsin legislature passed a law that . . . 
inmates with cancer must be treated only with therapy and pain killers, this court would have no 
trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for 
a serious medical condition serves no valid penological purpose and amounts to torture.” ’ 

ICE should draw more explicitly on best correctional practices, including training 
requirements for facility staff regarding GID. BOP has experienced the dreadful consequences 
of inadequate medical treatment for GID. A prisoner in BOP custody who was denied hormone 
therapy to treat her GID attempted to hang herself in her cell, then tried to cut off her testicles 
with a razor, requiring seven staples to repair the injury, and finally cut off her penis with a razor 
blade. BOP finally started the prisoner on hormone therapy and also issued and distributed a 
clarification of BOP’s program statements to make it clear that BOP inmates should receive 
individualized treatment plans that can include hormone therapy.'^’ ICE should make its 
PBNDS more robust by incorporating the substance of NCCHC’s Position Statement on 
“Transgender Health Care in Correctional Settings.”'"* For example, NCCHC has there 
concluded that “[ijdeally, correctional health staff should be trained in transgender health care 
issues. Alternatively, they should have access to other professionals with expertise in 
transgender health care to help determine appropriate management and provide training in 
transgender issues.” Such training should include all aspects of diagnosis and treatment of GID. 

Vlll. Segregation, Shackling, and Use of Force 

The 2011 PBNDS make some improvements to the use of ilisciplinary and administrative 
segregation in ICE facilities, but need to gofttrther in limiting the use of these harsh 
incarceration methods which are inappropriate to use routinely in a civil detention system. The 
standards take troubling steps backwards in the regulation of restraints and use of force as 
compared with their 200S predecessors. 

a. Segregation 

As described above in the cases of Tanya and Albert, administrative and disciplinary 
segregation can easily be misused by ICE. While the 201 1 PBNDS improve aspects of 


Woods Complaint, supra. 

Fields V. Smith, 653 F.3d 550, 556 (7th Cir. 2011), cert, denied (Mar. 26, 2012). 

Adams v. Fed. Bureau of Prisons, 716 F. Supp. 2d 107, 109-10 (D. Mass. 2010). 

12 " Federal Bureau of Prisons, Memorandum for Chief Executive Officers from Rear Admiral Nevton E. 
Kcndig to Assistant Director Charles E. Samuels, Jr., “Gender Identity Disorder Evaluation and 
Treatment.” (May 31, 201 1). 

National Commission on Correctional Health Care Board of Directors (Oct. 18, 2009), available at 

littiDiiyneclic.org/resourccs/statcmcnts./transEcnder.html 

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segregation, most notably by reducing the limit for disciplinary segregation from 60 to 30 days 
for a single violation - still a disproportionately lengthy period for a civil detention system - 
other problems remain. For example, it is unacceptable for ICE to outsource disciplinary 
segregation with only minimal oversight after a month of confinement. The PBNDS state that 
“[t]he facility administrator and the Field Office Director shall review the status of a detainee in 
disciplinary segregation after the first 30 days of segregation, and each 30 days thereafter, to 
determine whether continued detention in disciplinary segregation is warranted.” (No such 
review requirement is in place for administrative segregation at all.) If detainees are in ICE 
custody, ice’s Fieid Office Directors (FODs) must be directiy and daily responsible for their 
weifare, not content to leave detainees “out of sight and out of mind” for month-long periods. 
Similarly, ICE and its FODs must participate in, and ensure compliance with due process by, 
“disciplinary hearing panels,” rather than leaving disparate procedures to vary by facility. 

The American Bar Association’s Criminal Justice Standards for the Treatment of 
Prisoners provide an absolute floor when assessing the PBNDS, as ICE detainees are not 
convicted of criminal offenses, but held in civil detention. Yet the PBNDS fall short of even the 
ABA’s standards in several important respects. First, there is no requirement that a FOD 
reviewing prolonged segregation present a detainee with an individualized plan for leaving the 
unit. By contrast, the ABA standards require that where “[a] prisoner presents a continuing and 
serious threat to the security of others, correctional authorities should develop an individualized 
plan for the prisoner. The plan should include an assessment of the prisoner’s needs, a strategy 
for correctional authorities to assist the prisoner in meeting those needs, and a statement of the 
expectations for the prisoner to progress toward fewer restrictions and lower levels of custody 
based on the prisoner’s behavior. Correctional authorities should provide the plan or a summary 
of it to the prisoner, and explain it, so that the prisoner can understand such expectations.”*^^ 

Second, the PBNDS ’s treatment of administrative segregation is far too permissive. The 
ABA standards applicable to segregation for more than 30 days do not permit sole reliance on “a 
detainee’s criminal record” for administrative segregation, as the PBNDS do. ICE should limit 
all segregation to the ABA’s three categories of: (a) discipline after a finding that the prisoner 
has committed a very severe disciplinary infraction, in which safety or security was seriously 
threatened; (b) a credible continuing and serious threat to the security of others or to the 
prisoner’s own safety; or (c) prevention of airborne contagion, with a caveat that persons placed 
in segregation for medical reasons must be housed separately from other segregated detainees. ' *** 


ABA, Criminat Justice Standards for the Treatment of Prisoners . (June 201 1), Standard 23-2. 9(b), 
available at 

httn://www,amei'icanbar.orR/content/dam/aba;'Dublishing;'criminal justice section newsletter/treatment o 
f prisone rs CQm mentarvwebsite.aulhcheckda m.pdf 
Id. at Standard 23-2.7(a), 23-2.6(a). 


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Third, detainees with serious mental illness should never be placed in segregation. 

Courts have recognized that the Eighth Amendment’s prohibition of cruel and unusual 
punishments precludes subjecting prisoners with serious mental illnesses to prolonged solitary 
confinement.*^* Instead, such prisoners should be expeditiously considered for release on 
appropriate conditions of supervision. Unlike the PBNDS, the ABA standards recognize that 
specialized mental health evaluations must proactively be provided to all detainees placed in 
segregation, not only when and if a member of the non-specialist facility health care staff 
determines that “reason for concern exists.” ICE should require at a minimum that “[n]o 
prisoner should be placed in segregated housing for more than 1 day without a mental health 
screening, conducted in person by a qualified mental health professional, and a prompt 
comprehensive mental health assessment if clinically indicated. . . . Several times each week, a 
qualified mental health professional should observe each segregated housing unit, speaking to 
unit staff, reviewing the prisoner log, and observing and talking with prisoners who are receiving 
mental health treatment.”*'*^ 

Finally, the PBNDS’s limitation of segregated detainees’ recreation to “outside their 
cells,” rather than outdoors, conflicts with case law regarding minimum standards for convicted 
prisoners, which ICE detainees are not. The Tenth Circuit Court of Appeals held that “even a 
convicted murderer w'ho had murdered another inmate and represented a major security risk [is] 
entitled to outdoor exercise.”*'*'* The PBNDS also provide excessive leeway to facilities in 
stating that “[w]hen space and resources are available, detainees in administrative segregation 
may be provided opportunities to spend time outside their cells (in addition to the required 
recreation periods).”*'*'* This not only suggests that facilities with space and resources can 
nonetheless choose not to provide such opportunities, but also fails to satisfy the ABA 
Standards’ requirement that “[a]ll prisoners placed in segregated housing should be provided 
with meaningful forms of mental, physical, and social stimulation. ”*'’^ 

As a more general matter, the ACLU is troubled by ICE’s failure to place strict controls 
on facilities’ use of administrative segregation. Even the outer limits for disciplinary 
segregation, like the 30-day maximum for individual disciplinary violations and the FOD review 
that occurs before disciplinary segregation exceeding 30 days may continue, are absent for 
administrative segregation. The ACLU of Arizona has reported that administrative segregation 
is often inappropriately used to isolate survivors of abuse. Release must instead be the first 
option considered for individuals whom ICE determines cannot be in general population for 


See, e.g.-Maciridv. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995). 

’’’ABA, Treatment of Prisoners, Standard 23-2.8. 

Perkins V. Kansas Department of Corrections, 165 F.3d 803. 8 1 0 f 1 Oth Cir. 1999); .see u/.vu Ixipezv. 
Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (cn banc); zEfen v. Sakai, 48 F.3d 1082, 1086 (9th Cir. 
1994). 

PBNDS, supra, at § 2.12(V)(K). 

' ” ABA, Treatment of Prisoners, Standard 23-3.8. 


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administrative reasons, with appropriate conditions of supervision if necessary. Reducing the 
frequency of detention would avoid documented situations such as these: 

•“My client was raped in detention,” wrote an immigration attorney in April of 2009. “He 
has no criminal record, and before leaving [his] home county, was raped. . . . While he was 
detained in Florence, he was raped by another detainee in the bathroom. It was reported to the 
police, but the prosecutor in Pinal County declined to prosecute. After the rape, he was placed in 
isolation. He couldn’t eat, couldn’t sleep; just kept reliving trauma. He is completely alone, not 
even a television. We can only visit him on certain days because he is in protective custody. 
Everything has to be put on lock-down for him to be moved to visitation. When he is brought to 
visitation (or anywhere else), he is shackled hands, feet, and waist. They refuse to take off the 
shackles even to speak with me, and this is despite the fact that we are in a non-contact booth 
through a glass window. And the guards stand right outside. He is also in stripes. It is so 
degrading, after having been a victim, that 1 am truly outraged.”'^*’ 

• As a gay man who has suffered prior assaults, harassment and threats in his home 
country and while detained in the United States, Simon is especially susceptible to harassment. 
He is HIV-positive and, in order to maintain his health, requires constant medical monitoring and 
an environment with minimal stress and anxiety. Simon was placed in protective custody when 
he was detained in Eloy because he told officers that he had been previously assaulted and was 
afraid for his safety. While there, he was made to wear an orange disciplinary Jumpsuit and was 
shackled any time he was taken to court or for visitation. He felt humiliated and worried that the 
shackles would give the immigration judge the wrong impression and negatively affect his 
immigration case. Even though Simon’s family wanted to visit him at the detention center, he 
did not want them to see him in shackles. As a result of these traumas, and compounded by his 
continued detention, Simon suffers from severe depression and anxiety. 

•The ACLU also continues to be concerned that ICE’s Otay Mesa facility has a special 
medical segregation unit called F-Med for severely mentally ill immigration detainees. The 
ACLU of San Diego reports that some of the detainees in F-Med appear to be kept in isolation 
cells (distinct from suicide prevention “safety cells”), essentially solitary confinement, for 
months on end. 

b. Shackling and Use of Force 


ACLU of Arizona, In Their Own Words, supra, at 23. 

Id. at 25; see also Nancy Lopez, ’Transgender Immigrant Detainees Cut Off from Legal Help.” New 
America Media (Mar. 14, 2012) (noting tliat “Ijjail administrators won't let detainees in [administrative 
segregation! out for [know your rights! presentations . . . jsoj presenters sometimes skip these detainees”), 
available at htUi:/7newamerieamedia.org/201 2/03./tiansgend er-imminrant-detamees-eut-off-from"lenal- 
heb.php 


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The 20 1 I PBNDS have regressed by deleting a provision in the 2008 standards that 
prohibited use of “hard restraints” prior to a determination that soft restraints were ineffective. 
The 2008 standards also mandated that facilities document soft restraint use efforts in their 
incident reports. Even more dismayingly, the new standards no longer incorporate the DHS Use 
of Deadly Force Policy and drop the 2008 standard that that physical force be used only as a last 
resort.*^* 

ICE detainees have constitutional rights to be free from unreasonable and excessive use 
of force. “The ‘reasonableness’ inquiry in an excessive force case is an objective one: the 
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 
circumstances confronting them, without regard to their underlying intent or motivation.” It is 
undisputedly objectively unreasonable to apply restraints in a manner that causes unnecessary 
pain and injury; “the right to be free from unduly tight handcuffing [is] clearly established.”'"" 

The abuse of shackling and use of force by facility staff is endemic in the ICE detention 
system. For example, according to reports documented by the ACLU of San Diego, 

•Carlos Lopez was placed in the administrative segregation unit upon arrival at the SDCF 
in December 2006. He had provided information to the United States and Mexican governments 
regarding a drug cartel and was apparently placed in administrative segregation for his own 
protection. For nearly ten months, Mr. Lopez alleges that he was shackled with handcuffs and 
leg irons whenever he was moved to the recreation area, the medical unit, or for one of his 
frequent guest visitations. The tightness of the leg irons caused Mr. Lopez pain from the start. 
Yet his verbal complaints to the guards who shackled him were allegedly ignored, as were 
subsequent written requests for assistance. By April 2007, the overly-tight leg irons had chewed 
through the soft tissue of Mr. Lopez’s ankles, causing nearly constant bleeding. A facility 
counselor took photographs of Mr. Lopez’s bleeding ankles in May 2007. Mr. Lopez eventually 
stopped using his recreation time because even wearing two pairs of socks failed to alleviate the 
pain caused by the leg irons. 

Mr. Lopez filed a written grievance regarding the painful shackling in July 2007 and 
another in August 2007. Neither was answered. Despite SDCF authorities being on notice of 
Mr. Lopez’s pain and injury, the manner of shackling was never modified. It is not clear why 


’ 2008 standard available at htm:/A^w w.icc.aov/doclib./drio/'deten tion- 
standards.tpdt/'usc of force and rcstiaiiits.odf . 4, 2, 1. 

'''-“See Bell v. Wolfish, 441 U.S. 520 (1979); cf. Hudson v. McMillan, 503 U.S. 1 (1992); see also Gibson 
V, County of Washoe, 290 F.3d 1175, 1197 (9* Cir. 2002). 

Graham v. Connor, 490 U.S. 386, 397 (1989). 

Vondrak v. City of Las Cruces, 535 F.3d 1198, 1209 (10*'’ Cir. 2008) (internal quotation marks 
omitted); see also Wall v. Count)! of Orange, 364 F.3d 1 107, 1112 (9*'’ Cir. 2004); latLonde v. Count)! of 
Riverside, 204 F.3d 947. 960 (9*'* c'lr. 2000); Po/mer v. Sanderson, 9 F.3d 1433, 1436 (9"* Cir. 1993); 
Hansen v. Black, 885 F.2d 642, 645 (O'" Cir. 1989). 

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Mr. Lopez - who was classified at the lowest level of dangerousness when released from 
segregation into the general SDCF population in September 2007 - was shackled at all during 
this period. Each of Mr. Lopez’s ankles is now marked with three dark scars, all the size of a 
quarter or larger. 

•Jose Arias Forero was subjected to a distinct but equally troubling form of shackling. 

Mr. Forero arrived at SDCF around March 2005 from the El Centro Service Processing Center 
with an untreated torn rotator cuff. Fie was immediately placed in the segregation unit pending 
determination of where to house him permanently. Every time Mr. Forero wished to shower 
while in segregation, he alleges that CCA guards pulled his arms behind his back and cuffed 
them in that position. This aggravated Mr. Forero’s torn rotator cuff, causing him great pain. 

Mr. Forero’s daily complaints about pain to the guards who shackled him allegedly produced no 
change in the way he was shackled. A doctor eventually saw Mr. Forero regarding his tom 
rotator cuff The doctor issued a medical order that Mr. Forero was to be handcuffed in front of 
his body, rather than behind, so as to not cause him pain. A surgery later repaired Mr. Forero’s 
torn rotator cuff Mr. Forero was then moved out of segregation into the general population. 

Towards the end of April 2006, Mr. Forero was ordered back to segregation, allegedly 
for raising awareness among detainees about the pro-immigrant May Day marches being planned 
across the country. When staff arrived to shackle him for transportation to the segregation unit, 
Mr. Forero placed his hands in front of his body, consistent with the medical order. He says he 
was told to put his arms behind his back, and his protests about the medical order were ignored. 
An assistant warden instead ordered a guard to “get” Mr. Forero. The guard took Mr. Forero to 
the ground by putting his knee into Mr. Forero’s back and pulling back on Mr. Forero’s arms. 

Mr. Forero heard his repaired shoulder pop under the pressure of the guard’s force and cried out 
in pain. The guard then cuffed Mr. Forero’s hands behind his back and lifted Mr. Forero, who 
was then crying and screaming, by his arms. More excruciating pain shot through Mr. Forero’s 
shoulder as he was lifted and carried by his arms to the medical unit. At the medical unit, a 
doctor ordered that the cuffs be removed. An MRl taken ten to fifteen days later showed that 
Mr. Forero’s once-repaired shoulder had been re-tom. 

•Mauricio Acuna-Garcia alleges he was similarly injured through shackling-related use of 
excessive force. On October 28, 2008, Mr. Acuna-Garcia was put in segregation for fifteen days 
for being implicated in the theft of a fire extinguisher pin. At the end of this period, he met with 
the CCA chief of security at SDCF, who allegedly informed him, “When Fm ready [to let you 
out of segregation], Fll let you know.” After the meeting, a guard escorted Mr. Acuna-Garcia 
back to his cell. Once in his cell, Mr. Acuna-Garcia placed his hands and wrists out through a 
slot in the cell door in order to have his handcuffs removed. The guard, he says, instead pulled 
up on Mr. Acuna-Garcia’ s anns, causing pressure and pain in his wrists. Mr. Acuna-Garcia told 
the guard that this hurt several times. The guard finally freed Mr. Acuna-Garcia’ s right ann from 
the handcuffs. Rather than remove the left arm cuff, the guard allegedly pulled back with all his 


34 



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weight on Mr. Acuna-Garcia’s left arm. This twisted Mr. Acuna-Garcia’s body around until he 
was smashed up against the slot and the door, his left arm sticking out of the slot at a painful 
angle. 


The unnecessary force left Mr. Acuna-Garcia’s arm and shoulder bruised purple and 
black and caused him pain for weeks. He filed an internal complaint about the incident but 
received no response. Mr. Acuna-Garcia also suffered bleeding and scarring on his ankles from 
over-tight leg irons. His complaints about this have produced no change in the type or manner of 
leg shackles used. Like Mr. Lopez, his attempts to abate the pain of the hard shackles by 
wearing two pairs of socks have proven ineffective. 

Detention facility staff have also assaulted detainees without using shackles. In one Los 
Angeles case, 

•Mohammad Mirmehdi was badly beaten in retaliation for seeking to assist a fellow 
detainee whose medical condition was being mocked. According to a press account, the incident 
“began because guards delayed assistance to an ailing detainee who was begging to be taken to 
the bathroom. The detainee, Abdel Jabbar Hamdan, said in an interview that he has several 
medical conditions, including diabetes and kidney stones, and that [a guard named] Lopez 
taunted and mocked him. T said, “Please let me go to the bathroom,” I was crying,’ Hamdan 
said. T was holding my stomach in extreme pain. Everyone see me crying. He was laughing at 
me. He said if you need to do it so badly why don’t you do it on the floor. Then you have to 
clean it. I said, “Please, I’m an old man, let me go, please.’” He was eventually taken to the 
bathroom.” Mohammad’s brother, Mostafa, who was also in detention, “had been troubled by 
Hamdan’ s cries for help and asked Lopez about it, along with his name, presumably to report the 
guard’s conduct. Lopez became irate [and] Mohammad Mirmehdi asked Lopez why he was 
yelling at his brother. Lopez then attacked, beating and choking Mohammad .... ‘Mohammad 
was saying, “You are killing me, you are killing me!’”*’*^ Despite ICE’s claim that Mr. 

Mirmehdi was not seriously hurt, his ACLU of Southern California lawyer said Mirmehdi had 
bruises on his throat and under his ears, cuts on his face, and welts on his arms.”'’' 

The 2011 PBNDS’s retreat on restricting restraints and the use of force more generally is 
alarming and sends a message to abusive staff that their actions will be tolerated. The ACLU 
urges ICE immediately to revise these standards and restore protections to detainees who are at 
the mercy of facility staff. 

IX. Limited English Proficiency 


Kelly Hiomton, ‘‘U.S. investigating fight between 9/11 detainee and guard.” San Diego Union-Tribune 
(Mar. 10, 2005), available at 

hltn://www.sinnoiisan dieno.c om/imiontTib/ 20050310/ne\vs iDlObrolheir; hnnl 
'"Id. 


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The ACLU will carefully monitor TCE’s commitment throughout the PBNDS to translate 
written materials for detainees and ensure oral interpretation. There is an acute need for 
improvement in this area. The ACLU of Wisconsin reports that the Dodge County Detention 
Facility in Juneau, Wisconsin, a principal immigration detention facility for the state, has few if 
any staff who speak Spanish despite the prevalence of that language among the detained 
population. The ACLU of Georgia has received reports from immigration detainees at the Cobb 
County jail of “a lack of interpreters available to facilitate communication between detainees and 
jail personnel. Many people are coerced to sign documents they do not understand.” That 
affiliate’s monitoring of the Stewart Detention Center, in concert with Georgia Detention Watch, 
cites an unnamed source who asserted first-hand knowledge of facility operations and alleged 
that when disciplinary segregation hearings were held (sometimes they were skipped altogether), 
they were often conducted without a bilingual hearing officer.'"'’ 

It is also vital that ICL fully implement the PBNDS’s requirement that in the context of 
medical care “[ojral interpretation or assistance shall he provided to any detainee who speaks 
another language in which written material has not been translated or who is illiterate.”'""’ This 
requirement is crucial in light of the potential gap regarding oral communication beyond the 
fixed translations of written documents. Consider, for example, a detainee who wishes to ask 
questions about an informed consent form. 

Inadequate language access for medical care can have dire consequences. For 
example, Claudia Leiva Deras, the Nebraska woman who alleges being sexually assaulted while 
an immigration detainee, notes in her complaint that she “remained silent during these four 
months because none of the guards spoke Spanish, there were no signs or presentations about 
reporting sexual abuse, and she feared recrimination and harm to her family.” Under the 
American Public Health Association’s standards, “[i]t is the institution’s responsibility to 
maintain communication with the prisoners; therefore, personnel must be available to 
communicate with prisoners with language barriers.”'"'' 

X, Religious Freedom 

Azadeh Shahshahani (ed.), Terror and Isolation in Cohh: How Unchecked Tolice Power under 2H7(g) 
Has Tom Families Apart and Threatened Public Safety. (ACLU Foundation of Georgia, Oct. 2009), 17. 

Georgia Detention Watch, “Report on the December 2008 Humanitarian Visit to the 
Stewart Detention Center.” (2009), available at 

bttp://w\vw .acluga.org/Gcorgia Detention Watch Report on Stcvvait.pdf 

PBNDS, supra, at §§ 4.3-4.4. 

See generally Nina Bernstein, “Language Barrier Called Health Hazard in E.R.” New York Times 
(Apr. 21, 2005) (giving examples of faulty medical care resulting from language access problems). 

Leiva Deras v. Brueggemann (D. Neb. Jan. 3, 2012), available at 
httpi//www,ac]unebraska-prg/jmages'iMachments;J^ra JDeras^^^^C^^ 

American Public Health Association, Task Force on Correctional Health Care Standards, “Standards 
for Health Sen ices in Correctional Institutioirs.” (2003), 27. 

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The ACLU commends TCE for its 2011 PBNDS on religious freedom. The standards 
favor broad accommodations for religious exercise, commit to equal treatment, provide access to 
external clergy and volunteers where necessary, permit detainee preachers, accommodate new or 
unfamiliar religious practices, protect religious property (including apparel), and provide 
religious diets. 

XI. Conclusion 

The ACLU praises ICE for the time and attention to detention standard reform that the 
2011 PBNDS represent. They contain much that would constitute progress if properly 
implemented. As this statement shows, however, ICE long ago forfeited any confidence in its 
stewardship of detainees and must not be given any benefit of the doubt on matters such as 
PREA implementation. In telling detainees’ stories, the ACLU bears witness to their suffering 
and reaffirms its vigilance on behalf of those currently in detention. ICE’s shortcomings have 
serious inhumane and unconstitutional consequences, without adherence to and improvement of 
the 2011 PBNDS in the areas discussed here, and beyond, more harm will surely come to pass. 


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Em 

AMERICAN CIVIL LIBERTIES UNION 


Appendix A 

ACLII and ACLIJ afTilialed reporls referenced in statement (by date); 

- ACLU of Arizona, hi Their Own Words: l-jiihirhin Abuse in Arizona Immigralion 
Oelenlion Centers (201 1 ): 

littn /.'WWW acluaz org/sileVdefault/riles/docunienl-s/deleniion°b20reDorl°<i)20201 1 pdf 

- ACLU of New Mexico, Oiilsoiircing Responsihilily: The Human Cost of Rrivalized 
Immigriilion Detention in Otero County (201 1 ): htloV/aclu-nm oru/wo- 
conlent/unloads/201 l/Ol/OCPC-Renon ndf 

- American Civil Liberties Union and Human Rights Watch. De/mrtation By Default 
(20 1 0): hitp //WWW lirw oru<'en,'reoons/20l0/07/2b/deDortation-default-0 

- New York Civil Liberties Union (NYCLU), Voices from Varick: Detainee (Jrierances at 
New York City's Only h'eiteral Immigralion Detention Tacilily (2010): 

hitn //WW W nvclu ora/files/nublicaiions/\’arick Report final ndf 

- NILC. ACLU of Soutliem California, and Holland & Knight, A Broken System: 
Confidential Reports Reveal T'ailiires in U.S. Detention Centers (2009) 

WWW iiilc oru/dociimem liunr/id-9 

- Georgia Detention Watch, Refmn on the December TOOK Hiiimuinarian Visit to the 
Stewart Detention (. 'enter (2009): 

hllp //WWW acluua oru/Georma Delcniion Watch Report on Stewart pdf 

- ACLU of Massachusetts, Detention and iTepoiiation in the Age of ICE: limiiigranis and 
Himuui Rights in Massachusetts (2008) 

littp //WWW aclum oiu/sitev'all/files/educatioii/aclu ice detention report pdf 


33 








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u 



AMERICAN CIVIL LIBERTIES UNION 


Appendix B 

Sexual Abuse in Immigration Detention Facilities 


October 2011 



1-15 allegations 16 or more Gie? sutes b«ve no 

allegations unmisiraboQ 

detention fectlittes 
except fer Iowa, 
Kentucky. Kinneeote . 
Mltaoun, Nebraska, 
Ohio, Oklehome and 
Ut«h. 


In January 201 1, the National Prison Project of the American Civil Liberties Union filed a 
Freedom of Information Act request with several components of the United States Department of 
Homeland Security, including the Office of Inspector General, Immigration and Customs 
Enforcement, and the Office of Civil Rights and Civil Liberties, seeking all documents in their 
possession related to the sexual abuse of detainees in immigration detention facilities While the 


39 


128 


information gleaned from the documents we have thus far received is surely just the tip of the 
iceberg, and while these documents generally describe allegations rather than proven incidents, 
the results summarized above nonetheless paint a very instructive picture about how widespread 
this problem is and how vulnerable to abuse immigration detainees can be. 

The documents obtained through the Freedom of Tnfonnation Act request contain nearly 200 
allegations of abuse in immigration detention facilities across the nation. And given that sexual 
abuse is a problem that is widely underreported in the outside world, there’s little question that 
number does not fully represent the scope of the problem. But one thing is clear: the sexual abuse 
of immigration detainees is not an isolated problem, limited to one rogue facility or merely the 
result of a handful of bad apple government contractors who staff some of the nation’s 
immigration detention centers. As our documents show and the map above depicts, while centers 
in Texas resulted in the largest number of allegations, sexual abuse allegations have come from 
nearly every state that houses an immigration detention center. The data crystallizes the urgent 
need for the government to admit just how pervasive a problem sexual abuse is in its 
immigration jails and to take immediate steps to ensure that all detainees are protected. 

By scrolling over each state, you can see how many allegations from that state are shown in the 
documents and each of the individual facilities from which complaints have been received. Click 
on the state for more detailed information. For more information about the methodology used to 
arrive at the information above, and how allegations were counted, please visit 
htlps:.''/www.aciu.oig/se.xt£al-abuse-imm;gration-de(entioii-facilitiies-melhodologv . 


• Allegations of Abuse where the state is unclear 

30 allegations 

Examples of alleged incidents regarding this facility 

• ComplaiiiaiU alleged llial li/she was made lo slrip naked in from of Iwo other individuals, Ihen mocked and 
sexually harassed. (Complaint Rceeived: 03/2007) 

• Complainants allege that lliey were raped while in ICE cuslody and lhal ICE officials did nol lake Ihcir 
coniplainls seriously. (Complaint Received: 04/2007) 

• In transit between two detention facililics. Ihc officer in cliargc of making the Iransfcr allegedly look the 
subjccl detainee lo his/licr rcsidcncc and proceeded lo have sex with him/licr against his/licr will. (Incident 
dale: 09/2007) 

• Alabama 

• Facilities Unknown 

3 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged being repeatedly raped and sexually assaulted by other detainees in the facility'. 
(Complaint Receiv'ed: 03/2009) 

• Arizona 


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129 


• Florence Correctional Center 

1 allegations 

• Florence SPC 
1 allegations 

Examples of alleged incidents regarding this facility 

• Report circulated alleging a sexual relationship bclwccn a dclaincc and an unknown ICE officer. (Report 
Received 9/9/2()()9). 

• Pinsil County Adult Detention Center 

6 allegations 

Examples of alleged incidents regarding this facility 


• Complainant alleged tliat two corrections officers informed other inmates tliat he/slie is homosexual. 
Complainant alleedly now fears for Itis/lier safety because h/she has been physically and sexually assaulted 
in the past because of his/her homosexuality' (Complaint Received; 6/ 1 1/09) 

• Complainant alleged tliat detention officer physically/sexually assaulted her dming an aggressive pat-down 
search when officer squeezed detainee's breasts and genital area muiecessarilv liard. (Complaint Received: 
1/29/2010). 

• Eloy Detention Center 
8 allegations 

Examples of alleged Incidents I'egardtng this facility 

• Officer allegedly witnessed potential sexual assault when he observ'ed detainee grabbing the buttocks of 
other detainee wliile exiting cell. (Complaint Received: 1 1/6/2010). 


• El Centro Service Processing Center 

1 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat he/she has been the victim of discrimiiintioa emotional and physical abuse, and 
was raped twice wliile handaiffed by guards at this facility' before transfer. (Complaint received 05/2007) 

• Yuba County Jail 

1 allegations 

• Santa Ana City Jail 

3 allegations 

Examples of alleged incidents regarding this facility 

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130 


• CompUiiiiant alleged li/slie was iiiappropiiateh- strip-searched, then denied personal hygeine items. 
(Complaint Received: 02/2010) 

• CompUiinant alleges tliat IVshe was sexually assaulted while in transit to court by another detainee. 
(Complaint Received: 04/2011) 

• Otay Detention Facility 

4 allegations 

Examples of alleged incidents regarding this facility 

• Complainanl alleged that lie/slie was sexually assaulted by cell-mate while hc/she was sleeping, (Complaint 
Received: 07/12/2010) 

• Complainant alleges that fellow detaiirec inappropriately touched his/her genitals in an act of unwanted 
sexual conduct, and threatened to hurt coinplainaiil if li/shc reported the incident, (Complaint Received: 
10/15/2009) 

• Complainant currently a detainee at Olay alleged llial li/slrc was raped by a police ofriccr while being 
transported from police department to local jail. (Complaint Received: 4/2/2010). 

• Facilities Unknown 

8 allegations 

Examples of alleged ineidents regarding this facility 

• Complainant alleged tliat h/she was repeatedly touched inappropriately wdiile detained. (Complaint 
Received: 10/2007) 

Colorado 

• Denver Contract Detention Facility 

1 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat li/slie was subjected to verbal and sexual abuse by cellmate and other fellow 
detainees, and detention official ignored liis/her complaints. (Complaint Received: 4/26/2010). 

• Facilities Unknown 

3 allegations 

Examples of alleged incidents regarding this facility 

• An immigration attorney reported multiple alleged incidients of his/lier client being sexually liarassed while 
ill ICE cnstody.(Coraplaint Received: 12/2007) 

• CompUiinant alleged tliat he liad been veibiilly and sexually abused by fellow detainees. (Compliant 

Received 4/3/2010). 

Florida 

• Baker County Facility 

1 allegations 


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131 


• Glades County Detention Center 

1 allegations 

Examples of alleged incidents regarding this facility 

• CompUunaiit alleged tliat li/she was forced by cell-mate to engage in an unwanted sexual encounter, and 
dial ccll-malc threalened to hurl hiin/licr ifh/slic refused. (C^jmplainl Received: .3/2.i/2()l 0), 

• Wakulla County Facility 

2 allegations 

• Kromc Service Processing Center 

3 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat h/slie was sexually assaulted during a pat-down search by contract officers. 
(Complaint Received; 8/21/2009). 

• Facilities Unknown 

5 allegations 

Examples of alleged incidents I'cgarding this facility 

• Deputy slieriff allegedly intimidated 8 undocumented immigrants into performing sexual acts. (ICE 
Investigation Commenced 8/14/2009). 

Georgia 

• Stewart Detention Center 

1 allegations 

Examples of alleged incidents regarding this facility 

• CompUiinant alleged tliat liis/her roonmuite first dnigged liim, tlien pulled down liis/her pants mid applied 
cream to liis/her buttocks. (Coiiplaint Received: 1/20/2010). 

Illinois 

• McHcnn- County Adult Correctional Facility 

2 allegations 

Examples of alleged incidents regarding this facility 

• ComplaiiiaiU alleged li/shc was forced lo shower and use (he toilcl in full view of many olher detainees of 
llic opposite sex and was groped by jail staff. (Complaint Received: 07/2010) 


43 



132 


• CompUiinant alleged tliat li/she was subjected to sexual phj'sical, and verbal abuse by detention officers as 
a result of transgender identity, including being inappropriately groped, denied HIV medication, mid 
repeatedly taunted. (Complaint Received; 4/30/2010). 

• Tri-County Detention Center 

2 allegations 

Louisiana 

• LaSalle Detention Facility 

1 allegations 

Examples of alleged incidents I'egarding this facility 

• Complmnant alleged tliat li/she was forced to perform oral sex on a correctional officer wliile being held in 
a segregation cell. (Incident date; 03/2009) 

• Complmnant alleged tliat staff officer touched him/her inruippropriately during pat-down contraband 
search. (Complaint Received; 9/10/2009). 

• Oakdale Federal Detention Center 

1 allegations 
Massachusetts 

• Plymouth County Correctional Facility 
1 allegations 

Examples of alleged Incidents regarding this facility 

• Complainant alleged tliat on one occasion li/she was stripped naked, sexually humiliated, and exposed to 
freezing cold and iinsanitaiy^ conditions in sohtaiy' confinement (Complaint received: 07/09/2007) 

• SufTolk County House of Corrections (South Bay) 

1 allegations 

Examples of alleged incidents regarding this facility 

• Complmnant alleged tliat an officer sexually assaulted liim/her, then pulled dovii liis/lier pants in the 
cafeteria of the detention center and brought other detainees in to look at him/lier. (Complmnt received; 
08/17/2010) 

Maryland 

• Facility Unknow n 

1 allegations 

Examples of alleged incidents regarding this facility 


44 



133 


• CompUiinant alleged the sexual assault of a detainee by and ICE agent during a raid in Annapolis. 
(Complaint Received: 06/2008). 

Michigan 

• Calhoun County Correctional Center 

1 allegations 

Examples of alleged incidents regarding this facility 

• Complainanl alleged sexual harrassnient by two deputies who suggested that llic detainees should liave sex 
with each olhcr.(Complainl Received: l()/2()()8) 

New Jersey 

• Facility Unknow n 
1 allegations 

• Facilities Unknown 

1 allegations 

• Hudson County Correctional Facility 

2 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat h/she was stripped naked, sprayed \vi± pepper spray’ on liis/her genitals, and 
sexu^ly assaulted. (Complaint Received; 04/2010) 

New Mexico 

• Otero County Processing Center 

4 allegations 

Examples of alleged incidents regarding this facility 

• CompUiinant alleged tliat wliile aggressively being searched before boarding a bus, a corrections officer 
hfted her shirt to e:q?ose lier breasts to 40 other male deUiinees. (CompUiint Received: 03/20 10) 

• CompUiinant alleges tliat IVshe is being sexually assaulted and luirassed by fellow’ detainees because of 
his/her sexual orientation. OITiccrs in llic facility allegedly have ofrered to put Ihin/licr in solitary 
confinement for "safely." (Coinplainl Received: ()9/2()l()) 

Nevada 

• North Las Vegas Detention Center 


45 



134 


1 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat h/slie was the victim of attempted sexual assault bv a correctional officer. 

(04/30/2010) 

New York 

• Orange County Correctional Facility 

2 allegations 

Examples of alleged incidents I'egarding this facility 

• Complainant alleged tliat li/she was subjected to inappropriately sexual toiicliing bv cellmate. (Complaint 
Received: 11/05/2009) 

• Facilities Unlmown 

3 allegations 

Pennsylvania 

• Lackaw anna County Prison 
1 allegations 

• Pike County Correctional Facility 
1 allegations 

• York County Prison 

3 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat he liad been subjected to physical and sexual abuse by a York County prison 
official wlio liad twice struck liim in the face and pulled down liis pants, tugged on liis genitals, and ordered 
him to say "uncle." (Complaint Recewed: 1/20/2010). 

• • 

Facility Unknow n 
1 allegations 
Rhode Ishmd 


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135 


South Carolina 

• Facility Unknown 

1 allegations 

Examples of alleged incidents regarding thisfaeility 

• Complainant alleged tliat fellow detainee and patient subjected liim/her to a "forced sexual encomiter. " 
(Complaint Received 7/28/2010). 

Tennessee 

• Facility Unknown 

2 allegations 

ComplainatU alleged the li/she had been sexually assaulted while in his/her bed by fellow detainee. 
(Complaint Received 9/3/2009), 


Texas 

• Johnson County Detention Center 

1 allegations 

• Houston Contract Detention Facility 

2 allegations 

• Polk County Adult Detention Center 

2 allegations 

• Laredo Contract Detention Facility 

3 allegations 

Examples of alleged incidents regarding this facility 

• An ICE officer is alleged to luive shoved a detainee against a wiill and fondled liim/lier. (Complaint 
Received: 04/2008) 

• On more tlum one occasion, correctiorcd officers allegedly requested a striptease dance from a detiimee. 
These officers allegedly were aware tliat the detainee was formerly employeed as an exotic dancer at a lociil 
club. (Complaint Received: 11/2008) 

• South Texas Detention Facility 

4 allegations 

Examples of alleged incidents I'egarding this facility 


47 



136 


Detilinee alleged tluit li/slie was raped, reported the incident, then was transferred to Port Isabel Service 
Processing Center, where li/she lias since attempted suicide and was placed in isolation. (Complaint 
Received: 05/29/2007) 

CompUiinant alleged tliat li/she was the ’victim of numerous sexual assaults. (Conplaint Received: 01/2008) 
CompUiinant alleged tliat li/she was assaulted in the shower area, where li/she was forced to perform oral 
sex on an officer, dragged by his/her liiur and then penetrated by the officer witliout a condom (Complaint 
Received: 06/2009) 

T. Don Hutto Residential Center 

5 allegations 

Examples of alleged incidents regarding this facility 

A female detainee allegedly was sexually assaulted by an officer. (Complaint Received: ()5/2()()7), 

Port Isabel Sen ice Processing Center 

6 allegations 

Examples of alleged incidents I'egarding this facility 

An ICE detainee alleged tliat h/she was raped by an officer, then placed in isolation as punishment for 
reporting the incident. (Complaint Received; 08/2007) 

El Paso Processing Center 

8 allegations 

Examples of alleged incidents i'egarding this faeility 

A detainee alleged tliat h/she was inappropriately touclied in the groin area and butt at his/her residence by 
an ICE officer on the morning of liis/lier arrest. (Complaint Received : 07/2008) 

Complainant alleges that fellow detainee repeatedly made umv'anted pliy’sical and verbal sexual advances 
toward hini/lier wiiile sharing dorm (Complaint Received; 7/21/2010). 

Willacy Detention Center 

12 allegations 

Examples of alleged incidents regarding this facility 

CompUunant alleged tliat detiiinees were being raped bv corrections officers. (Complaint Received: 
06/2009) 

Facilities Unlmown 

13 allegations 

Examples of alleged incidents regarding this facility 

ComplaiiiaiU alleged that h/she was asked by an officer for a photo and contact iiiformalion so that li/shc 
could "gel together" after being released. (Coinplainl Received: ()4-/2()()7) 

ICE Sccurily Officer is alleged to have sexually abused three dclainccs. (Complaint Received: 05/2008) 
Complainanl alleged that h/she had been in an ongoing sexual rclalionship with an ICE officer, who had at 
one time sexually assaulted him/her during his/her slay in medical center 

Prison official employed by contractor allegedly had engaged in sexual intercourse with a dclaincc minor. 
(Report Received 4/1/2010) 


48 



137 


• CompUiiiiant alleged tliat li/she was forced to peiforai oral sex on a border patrol officer in excliange for 
being allowed to remain in Texas. (Complaint Received; 1/26/2010). 

Virginia 

• Rappahannock Regional Facility 

2 allegations 

Examples of alleged incidents regarding this facility 

• ComplaiiiaTil alleged that li/she was repeatedly sexually liarassed and assaulted by liis/lier cellmate, but 
his/her complaints were repeatedly ignored by officers in the detention facility . (Complaint Received: 
06/2010) 

• Hampton Roads Regional Jail 

5 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat h/she was raped by unidentified fellow detainee. (Complaint Received 4/20/2010) 

• Complainant alleged tliat h/slie was se.xually assaulted by a fellow detainee wielding a knife, and was also 
pliy^sically attacked by a friend of the initial assailant. (Complaint Received: 10/26/2009). 

Washington 

• Tacoma Noithwcst Detention Center 
4 allegations 

Examples of alleged incidents regarding this facility 

• Complainant alleged tliat h/slie was repeatedly raped, assaulted, and harassed by the same individual at the 
facility. (Complaint Received: 04/2011) 

• Complainant alleged tliat he/she was sexually assaulted and beaten by a group of fellow- detainees in the 
bathroom area of the facility, resulting in several injuries requiring medical attention. (Complaint Received: 
5/24/2010). 

• Facilities Unlaiown 

1 allegations 

Examples of alleged incidents regarding this facility 

• CompUiiiiant alleged tliat fellow dettiinee had sexutilly luirassed liim, leading to a physical idtercation 
betiveen tliem. (Complaint Received 1/19/2011). 

Wisconsin 

• Kenosha County Detention Center 


49 



138 


1 allegations 

Examples of alleged incidents regarding this facility 

Complainant alleged tliat h/slie was physically and sexually abused by imnates while detained. (Complaint 
received 12/2009) 


50 



139 



FOR HUMAN RIOHTS 


Written Slntement of 
'('hr Advorates for Human Rights 

Siibmillrd to the United States House of Representatives 
Committer on the Judiriar)’ 

Subcommittee on Immigration Poliev and Enforcement 

For the March 28, 2012, Hearing on 
"Holiday on ICE: fhe ll.S. Department of Homeland Security's 
New Immigration Detention Standards" 

The Advocates for Human Rights is a non-governmental, nonprofit organization dedicated to the 
promotion and protection of internationally recognized human rights With the help of hundreds 
of volunteers each year. The Advocates investigates and exposes human rights violations, 
represents immigrants and refugees in our community who arc victims of human rights abuses, 
trains and assists groups that protect human rights, and works through education and advocacy to 
engage the public, policy makers, and children about human rights The Advocates holds Special 
Consultative Status with the United Nations 

For nearly 30 years The Advocates has provided immigration legal assistance to asylum seekers 
in the Upper Midwest. Today The Advocates provides free legal services to asylum seekers who 
fear persecution if forced to return to their countries of origin and immigrant detainees who 
would otherwise be left without any access to counsel during removal proceedings 

The title of today’s hearing seeks to suggest that people in the custody of Immigration and 
Customs Enforcement ("ICE") will be treated to a "holiday” at taxpayer expense because of 
ICE'S proptosed detention standards This suggestion is unfounded and ignores the desperate 
need for accountability, oversight, and sound policy that is based on considerations of public 
safety, cost efTectiveness, and respect for human dignity, that has characterized the immigration 
detention system since 1996 indeed. ICE's proposed detention standards, the 201 1 Performance 
Based National Detention Standards ("PBNDS”). fall short of providing much-needed 
accountability in the ICE deienbon system. 

While the United States has the power and obligation to control immigration, its authority is 
limited by the obligation to respect the fundamental human rights of all persons, regardless of 
citizenship or immigration status In designing and in enforcing our immigration laws, the riglits 
to due process and fair deportation procedures, to seek and enjoy asylum from persecution; to 
freedom from discrimination based on race, religion, or national origin, to freedom from 
arbitrary detention; and to freedom from inhumane conditions of detention must be considered, 
protected, and upheld 


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140 


Misplaced Reliance on the U.S. Penal Model for Civil Immigration Detention 

ICE does not operate a penal system. ICE has the authority to detain people suspected of being in 
the United States in violation of immigration laws or who have been found to be removable and 
are awaiting deportation.* The purpose of ICE detention is to ensure appearance at hearings and 
for removal, not to punish. 

Despite this, ICE relies on a penal detention modeP which fails to achieve the stated purpose of 
detention at a cost of over $2 billion annually. As Dr. Dora Schriro explained in her 2009 report: 
“With only a few exceptions, the facilities that ICE uses to detain aliens were built, and operate, 
as jails and prisons to confine pre-trial and sentenced felons. ICE relies primarily on corrections 
incarceration standards designed for pre-trial felons and on correctional principles of care, 
custody, and control. These standards impose more restrictions and carry more costs than are 
necessary to effectively manage the majority of the detained population.” 

People detained by ICE wear prison uniforms, are regularly shackled during transport and in 
their hearings,^ are held behind barbed wire,'* and may be locked in their cells up to 18 hours 
each day.’ People in detention often face barriers to communicating with their family, counsel, 
or other support systems.’ Depending upon where they are detained, they may not be permitted 
contact visits with family.’ Immigrants in detention may be held for prolonged periods of time 
without access to the outdoors.* People detained on allegations of civil immigration status 
violations routinely are commingled with individuals convicted in the general criminal justice 
system.’ Use of solitary confinement, sometimes for prolonged periods of time, is permitted and 
routine. Administrative and disciplinary segregation, both used in ICE detention facilities, mirror 
punitive forms of solitary confinement imposed in the penal context.” 

Scope of Migrant Detention in the United States 

The U.S. immigration detention system is an enormous operation which has become a 
cornerstone of immigration enforcement in the United States. The Department of Homeland 
Security reports that in 2010 approximately 363,000 foreign nationals were detained by ICE." 
People detained on civil immigration status violations are held in over 250 jails, prisons, and 
secure detention centers around the United States," operated variously by ICE, state and local 
governments, and private prison corporations." 

The number of beds available each day for detention in ICE custody has nearly doubled in the 
past seven years, from 18,000 beds in 2004 to 33,400 beds in 2011." The number of people who 
pass through the ICE detention system has nearly doubled as well from 209,000 in 2001 to 
392,000 in 2010.*’ Approximately 2,700 new beds have been added to the system since July 
2009.” 

Federal expenditures on ICE detention have grown 134% in the past seven years, from $864 
million to $2.02 billion." The Obama Administration’s FY2012 request amounts to expenditure 
of $5.5 million per day on ICE detention.’* 

The private prison industry has played a significant role in the growth of these budgets by 
advocating for the expansion of immigration detention and enforcement policies at the federal 
and state levels. A 2011 report by Detention Watch Network notes that “[ajithough private 


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141 


corporations have long exercised influence over detention policy in a variety of contexts, a recent 
accumulation of evidence indicates that the main contractors involved in the explosive growth of 
the immigration detention system have been involved in heavy lobbying at the federal level.” 
The report finds that “[i]n 2009 TCE had an adult average daily population (ADP) of 32,606 in a 
total of 178 facilities. Of these, 15,942 detainees - or 49% - were housed in 30 privately- 
operated detention centers.”*® 

Mandatory detention laws enacted in 1996 have contributed to the skyrocketing growth of 
detention as an immigration enforcement tool. Sixty-six percent of the 3 1,075 people detained on 
September 1, 2009, were subject to mandatory detention.®" At the same time, ICE fails to 
exercise discretion to release those people not subject to mandatory detention laws.®* Indeed, 
ICE increasingly relies on detention as the only way to guarantee appearance for hearings despite 
the availability of alternatives to detention. ICE has also failed to adequately fund or use 
alternatives to detention, despite findings that alternatives to detention cost significantly less®® 
and “yield 93 percent to 99 percent appearance rates before the immigration courts.”®" 

Lack of Appropriate Standards for Detention Facilities Result in Harm 

ice’s proposed detention standards, the 2011 Performance Based National Detention Standards, 
fall short of providing necessary accountability for the ICE detention system, which has 
demonstrated a failure over the past decade to ensure the safety and dignity of those in detention. 
These standards have significant deficiencies in monitoring and oversight, little transparency, 
and no consequences for non-compliance with standards.®" 

Highly publicized and tragic cases illustrate a systemic disregard for the rights to necessary 
medical care in detention, humane conditions of detention, and treatment respecting basic 
human dignity. Between 2003 and December 2011, ICE reported 127 deaths of non-citizens in 
their custody.®" Shocking reports of the United States’ failure to screen for illness and failure to 
provide care to ill or injured persons in its custody abound.®" Appropriate psychological and 
medical services for torture survivors are universally unavailable.®® 

“One detainee, a legal permanent resident, had been diagnosed with bipolar 
disorder, post-traumatic stress disorder, and severe depression prior to her 
detention. Her mental health issues were not diagnosed when she was first 
detained by ICE in August, 2006, and during her 18-month detention her mental 
illness continued to go undiagnosed and untreated. Guards at the South Texas 
Detention Center ridiculed her by telling her she was not truly sick, she was 
faking her illness, that she had no rights in the United States, and that she would 
be deported to Mexico.”®* 

“Even though I was showing many symptoms, no one offered me any medical 
attention. [...] 1 was so sick that 1 was delirious, vomiting, had no appetite, a 
strong head ache, fever, 1 was very cold, and 1 had a cold sweat. In my cell there 
are more than forty people who are sick. As far as I know, no one in my cell has 
had a blood test or any lab testing done.”®® 


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142 


“When 1 came to this detention center, no one gave me a medical examination. 1 
informed them that I had leukemia and diabetes, but up to this point, I have not 
received treatment for my cancer nor my diabetes. I have never had a blood test 
for my diabetes, and I’m only given a blood sugar test once a month”^“ 

The Women’s Refugee Commission has documented many instances of delayed or denied 
medical care. Women in one Arizona facility reported “that medical treatment was often 
degrading: they are frequently told by medical staff that they are criminals who are not entitled to 
care; other detainees are used as interpreters, including during mental health consultations; 
medical staff deny their complaints of depression or anxiety and refuse them medication for 
these conditions, even when they had been receiving treatment at a previous facility.”^' The 
Florida Immigrant Advocacy Center reported that, “Conditions of medical care have been 
deteriorating, funding is inadequate, detention is not cost effective, ICE oversight of detention 
facilities is lacking, detention facility staff often treats detainees cruelly, detainees are transferred 
in retaliation, and essential healthcare is often delayed or denied”^^ 

A March 2011 report by the Department of Homeland Security’s Office of Inspector General 
reports that while the ICE Health Services Corps (“DISC’’) serves as medical authority for ICE, 
deficiencies call into question the effectiveness of care, particularly regarding provision of 
mental health care. The OIG reports that IHSC staffs only 18 of the approximately 250 facilities 
holding people in ICE custody, resulting in limited oversight and monitoring, and that even in 
those facilities which they staff, effectiveness is limited by persistent staff vacancy rates. The 
report finds that facilities were not always capable of providing adequate mental health care to 
ICE detainees. Detention facilities lack the capacity to provide adequate care for the increasing 
number of people in detention and struggle to fill open medical positions. 

Medical and mental health issues are exacerbated by the lengthy and indefinite periods of 
detention endemic in the immigration detention system. Many people in ICE custody are held in 
county jails or other facilities designed for short-term stays by people in pre-trial criminal 
custody. These facilities lack the screening, protocols, personnel, and facilities to deal with 
people detained by ICE whose average length of stay is over 30 days. ’" 

Sexual abuse of migrants in detention is a problem of serious concern. Over 200 reported 
complaints of sexual abuse have been filed by immigrant detainees in the past five years, ’'’ which 
advocates believe reflect a fraction of the problem.” Women make up 9 percent of the 
immigration detention population.’* Some of these women are “victims of trafficking, survivors 
of sexual assault and domestic violence, pregnant women, and nursing mothers.’’” Human 
Rights Watch has identified “more than 15 separate documented incidents and allegations of 
sexual assault, abuse, or harassment from across the ICE detention system, involving more than 
50 alleged detainee victims.’’'**’ These figures likely understate the extent of sexual harassment 
and abuse in ICE facilities, as people in detention “face a range of obstacles and disincentives to 
reporting, from a lack of information about rules governing staff conduct, to fear of speaking out 
against the same authority that is seeking their deportation, to trauma from the abuse in detention 
and possibly from violence and other abuse they have previously suffered in their countries of 
origin. 


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The Bureau of Justice Statistics collects data on sexual abuse in custodial settings. But its data on 
ICE detainees are limited to facilities that are “run by or exclusively for” ICE, and therefore 
exclude “sexual violence, abuse, and harassment of immigration detainees in the hundreds of 
jails and contract facilities in which ICE rents a portion of the bed space. This is a notable 
omission, both because of the number of such facilities used by ICE and because the rates of 
substantiated sexual violence are four to five times higher in state prisons, local jails, and 
privately operated jails, than in federal prisons, according to the 2006 BJS survey.”''^ 
“Department of Homeland Security, the agency in charge of immigration detention, is not 
mandated under law to publish data on sexual violence, and has not done so.”‘'^ 

The ACLU reports disturbing accounts of rape of women detained by ICE. An excerpt from one 
woman’s account states: 

He hurriedly shoved anything that was on the floor of the front area of the van and 
motioned for me to lay down on my back. I refused. When he saw that I wasn’t 
going to cooperate, he went to the back of the van. He pushed my things off the 
seat in the cage inside the van and gestured for me to get back in. I complied. He 
followed me into the van. I told him I would report him if he continued to touch 
me and he pushed me into the van. I was crying and I thought it was the end of 
my life. 1 thought he was going to kill me. 1 thought 1 should have stayed in my 
home country if my life was going to end like this because at least I would have 
had more time with my children. He got in the cage with me and started unzipping 
his pants and pulling off my clothes. He exposed himself to me. He was angry 
that I would not take off my clothes. I kept yelling, saying that if he didn’t stop I 
would tell someone. 

“Although federal law now criminalizes sexual contact between guards and detainees, the 
prohibition on such conduct is far from clear at the facility level. Advocates report that detainees 
sometimes deny knowledge of sexual misconduct at their facility, but will refer to ‘alliances’ 
between detainees and guards based on sexual relationships.”^’ While ETnited States’ federal law, 
known as the Prison Rape Elimination Act (“PREA”), is in effect, recently proposed rules which 
would exempt immigration detention facilities from PREA have raised serious concerns. Despite 
Congressional intent of the 2003 Prison Rape Elimination Act to apply to all types of 
confinement, including confinement of immigrants in immigration detention, the rules proposed 
by Attorney General Eric Holder in June 2011 explicitly stated that they would not be applied to 
immigration detention. Justifications for this exclusion included that the Department of Justice 
cannot create rules for the Department of Homeland Security (the federal department with 
jurisdiction over immigration detention) and the Department of Health and Human Services 
(which has jurisdiction over the custody of unaccompanied alien children), as well as that the 
Department of Homeland Security already has its own policies to prevent sexual assault in 
detention. Ongoing advocacy around this issue has pushed for inclusion of all immigration 
detention in the Department of Justice’s final rules, which have been finalized but not yet 
released. 

“Sexual harassment receives sparse and inconsistent treatment in current ICE materials. In some 
instances, the definition of sexual harassment is limited to actions or communications ‘aimed at 
coercing or pressuring a detainee to engage in a sexual act.’ This fails to encompass egregious 


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144 


acts of harassment — humiliating comments of a sexual nature or unnecessary viewing of 
detainees while they undress — that are not directed towards instigating a sex act.”*” 

“In spite of the non-criminal nature of immigration detention, ICE has adopted a policy that 
imposes few- limitations on guards’ authority to search detainees and, consequently, opens up 
unnecessary opportunities for abuse of that authority. To conduct a pat-down search of a 
detainee, a guard need not meet any threshold of suspicion of contraband; it is contemplated that 
these searches w-ill be conducted routinely. ICE insists this policy is necessary to give facilities 
flexibility in maintaining security. Currently, although crossgender strip searches are only 
permitted in emergency situations, no restriction is placed on cross-gender pat searches. 
How-ever, ICE has said that the new- detention standards w-ill prohibit cross-gender pat searches 
and will allow trans-gender detainees to select the gender of the guard searching them. ’’[citations 
omitted]''* 

Although there have been documented incidents of sexual assaults of people in detention during 
the course of transportation, ICE transportation policies are insufficient to protect against sexual 
assault. “Despite appeals from advocates that the transportation standard be amended to require 
that a female guard be present during transportation of female detainees, the existing standard 
has only required that transporting guards call in the time and mileage they spend transporting a 
female detainee. ICE has announced that the new standard will prohibit a single guard from 
transporting a single detainee of the opposite sex, but w-ill not require the presence of a guard of 
the same-sex unless it is expected that a search of the detainee will be conducted during the 
transport.”'''' 

Frequent transfers of people between detention centers increase the likelihood that sexual abuse 
will remain unaddressed.'" While ICE has announced its intent to implement a new transfer 
policy, that policy is not yet publicly available. 

Lesbian, gay, bisexual, and transgender people face sexual and other abuse while in immigration 
custody. “Heartland Alliance’s National Immigrant Justice Center (NIJC) filed 13 complaints in 
April 2011 w-ith the Department of Homeland Security’s (DHS’s) Office of Civil Rights and 
Civil Liberties and Office of Inspector General demanding that the Obama administration 
investigate abuse allegations and take action to protect lesbian, gay, bisexual, and transgender 
(LGBT) immigrants in DHS custody. The 13 complaints describe violations including sexual 
assault, denial of medical and mental health treatment, arbitrary long-term solitary confinement, 
and frequent harassment by officers and facility personnel... In October 2011, NEC filed with 
the government four additional complaints of abuse against detained LGBT immigrants, bringing 
the total number of complaints to 17 since April 2011.”'" Members of Congress recently called 
for an investigation into these allegations.'^ 

Conclusion 

Far from a holiday ICE detention can be a harrowing, violent, and dangerous experience. The 
wasteful and unnecessary penal nature of confinement coupled with the expanding rate of 
detention has resulted in egregious violations of detainees’ civil and human rights. Detainees are 
denied adequate medical care, subjected to harsh treatment including unwarranted crossgender 
searches and solitary confinement, and documented cases have been sexually assaulted and 


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145 


raped. The lack of accountability that permeates the current detention model, which utilizes state, 
federal, and private prisons, and the inadequate accountability standards in the 201 1 PBNDS, 
create a detention environment where detainees can be subjected to significant harm with no 
avenue for Justice. Congress should pass legislation and detention polices that provide humane 
and safe procedures that ensure that the rights of detained individuals are respected and 
protected. 


‘ This detention is authorized by INA §§236, 236A, and 241. 

" SlIRIRO, supra note 53 at 2. 

' The Advocates for Human Rights regnlarlv represents people delained in Minnesota and has observed that people 
routinely remained shackled when appearing before the Immigration .ludge. 

^ See Human Rights Advocates, Submission to llie Hiunan Rights Coimeil, 1 llh Session, Agenda Item 3: Rights of 
Migrants. 

^ Visit by The Advocates for Human Rights to Ramsey County Adult Detention Center. 201 1 (notes on file with 
auQior). 

^ See, e.g. , KATHERINE FENNELLY /\ND K.VTHLEEN MOCCIO. U. OE MINN. HUBERT II. HUMPHREY INST. OE PUB. 
Afe.mrs, Attorneys ’ Perspectives on the Rights oe Detmned Immigr.\nts in Minnesota (Hov. 2009). 

' County j ails holding immigrant detainees in Mimiesota have ' Addeo visits” with family members, where detainees 
see and speak with their family members via closed circuit television. 

County j ails, designed for short periods of detention, do not necessarily have outdoor recreation facilities. The 
Ramsey County Adult Detention Center in St. Paul, Minnesota, for example, has no outdoor recreation access. 
People in detention have very' limited access to a small room with window near the high ceilings which can be 
opened to let fresh air into the room. 

A client of The Advocates for Human Rights seeking asyhmi from Ethiopia and being treated for depression and 
Post-Traumatic Stress Disorder, was detained for over one year in the Ramsey County Adult Detention Center in St. 
Paul, Minnesota, following her asylum hearing in front of an immigration iudge. While detained, she never saw the 
outdoors and was co-mingled with the general convicted population because the facility with which ICE contracts 
lacks the facilities. 

See, e.g., Georgia Detention Watch, Repoil on the December 2008 Humanitarian Visit to the Stewart Detention 
Center, at 6. Available al http:/,/www.aclu g a.org/Georaia De ce n t ion Watch Rep o rt on Ste wan.p df. 

U.S. Dept, of Homeland Security, Office of Immigration Statistics, Policy Directorate, 'Aimual Report,” June 
2011, available al htt['):4'’w -\ ^-^v.d h s. pov / xhbrarv\/as sct s/statjstics/[')ublic at ioriS .V nfo r ccmci'it-ar-201 0 .i H f. 

See IMMIGR. h. Ct'r., AChU of S. Cai,.. and Hoi.i,and& Kmght, A Broken System: Conftdenttae 
Reports Reveai. Faieerks in U.S. Immigrant' De'i ention Cen'I'krs 4 (2009) [hereinafter A Broken Sys fkmJ. 

See e.g., DETENTION WATCH Network, about the U.S. Detention .and Deportation System, available at 
•WWW. detentionwatcbiietwork.org/aboindeT nfji_a 

NatT Immigration Fonun. The Math of Immigrant Detention: Runaway Costs for Immigration Detention Do Not 
Add Up to Sensible Policies, at 2. Available at 

hTtp:/,hvww.immigraTjoiifo.aim.org/images/'uploads./Ma thofImiriigrarionDetention.pdf . 

NatT Immigration Fonun. The Math of Immigrant Detention: Runaway Costs for Immigration Detention Do Not 
Add Up lo Sensible Policies, at 2. Available al 

http:,//www . inmiigrad onfoni m.org/ima£es/uploads,‘Mat hofI mmigratioi i Detentioii.ndf . 

Human Rights First, .Jails and -Jumpsuits: Transforming the U.S. Immigration Detention System — .4 Two-} ear 
Seview, 2011, at hi. 

^ Human Rights Hirst, -Jails and -Jumpsuits: Transforming the U.S. Immigration Detention System A Two-Year 
Review. 2011, al hi. 

Ilimian Rights First, Jails and Jumpsuits: Transforming the U.S. Immigration Detention System - A Two-Year 
Review. 201 1, at i. 

Detention Watch Network, Grassroots Leadership, Inc., and Sarah V. Carswell, "The Influence of the Private 
Prison Industry in Immigrant Detention.” available at htTp://www.detentioriwatchneTwork.org/privateprisons . 

Id. 

See, e.g. Report to tlie American Bar Ass'n, Reforming the Immigration System, Executive Summary% Feb. 2010, 
at p. ES-25, available at 


330 Second Avenue South • Suite 800 • Minneapolis. MN 55402 « USA 
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146 


hitp://wwv>\americanbar.org/coiitei}i/dam/aba4iiigrated/media/no:<earch/iinniigratioii _reform_execiitive summaiT _0 
1 2510. aiithchcckiJam.pdf . 

ACLU of Georgia and Georgia Detention WatcL "Secm'ely Inseciu'e: The Real Costs, Consequences, and Human 
Face of Iimnigration Detention^’ available al 

h ttp://w\ v w.detcn tio nwalclmetwork.org./s i tes/dctenti on watclii i etwork.org/file:>/i.l4.i 1 Fact%20 S heet% 2 0FINAL 0. 
pdf. 

ACIdJ ol’Gcorgia and Georgia DcLcnlion Watch, ''Securely Insecure: The Real Costs, Consequences, and Human 
Face of Immigration DeLeulion," available at 

hUp:/Av vv\ v .de lcii Uo ii\vai,dinelvvork.org/sUes,kietei]lionv\ ai,c lineUvo]k.org./files/1.14.1 l_ Faclbo20 She el%20FlNAL 0. 
pd f 

Brittney Nystrom, Senior Legal Advisor. National Immigration Fonmi. Written Testimony before U.S. House of 
Representatives, House Homeland Security' Committee, Border, Maritime, and Global CounteiteiTorism 
Subcoimnittee, ''Mo\ing Toward More Effective Immigration Detention Management,” Dec. 10, 2009, available al 
littp:,-'/chsdcmocfats.liousc.gov/SiteDocuments/20091210105703-5070S.PDF . 

"■ Immigration and Customs Enforcement, List of Detainee Deaths Since October 2003, available ai 
lit tp:/A vw w.icc.gov/ d oclib/foia,-Tepofts /de taineedeaths2 0 03-p r esent.pd f 

Nina Bernstein, Hotig Kotig Etnigratu 's Death Ailracis Scruliny of U.S. Detention System, N.Y. TIMES, Aug. 13, 
2008 (reporting that "[ijn April, [Hiu LuiJ Ng began complaining of excruciating back pain. By mid-.luly , he could 
no longer walk or stand. And last Wednesday, two days after bis 34Lh birthday, he died in the custody of 
Immigration and Customs Enforcement in a Rhode Island hospital, liis spine ifaelured and his body riddled with 
cancer that had gone undiagnosed and imtreated for months.”). See also Katherine Fennelly and Katlileen Moccio, U 
of Minn. Ilubertll. Humphrey Inst. Of Pub. Affairs, "Attorneys' Perspectives on the Rights ofDetained Inmiigrants 
in Mimiesota,” (Nov. 2009). 

See Dana Priest & Amy Goldstein, Caught Without Care, TllE W.4.SII. POST, May 13, 2008 (reporting that suicide 
is tlie most common cause of death among detained immigrants witli 15 of 83 deaths since 2003 the result of suicide 
and stating, "No one in the Di\ision of Iimnigration Healtli Sendees (DIHS), the agency responsible for detainee 
medical care, has a firm giip on tlie number of mentally ill among the 33,000 detainees held on any given day, 
records show. But in confidential memos, officials estimate that about 15 percent -- about 4,500 — are mentally ill, a 
number that is much higher than the public ICF'! estimate. The numbers are rising last, memos reveal, as state mental 
institutions and prisons transfer more people into immigration detemtion”). See also PHYSICIANS FOR Hum an 
RkiH’I's, Bki.ekvlk/NYU Chn i'kr for St.iRVivoRS OF Tortlrh, From PHRSFCt.i'i'iox to Prison: Thf; Health 
CONSEQETENCES OF DETENTION EOR ASYLUM SEEKERS (2003), available at 
ht tp ://physiciansforhumanrights.org/libraiA',/docti n i e nts/repoi~ts/.repoiT-per sto prison-2003.pdf. 

Texas Appleseed, Justice for Immigration 's Hidden Population: Protecting the Rights of Persons with Mental 
Disabilities in the Immigration Court and Detention System, Mar. 2010, at 25. Available al 
http: '■',rv,’yvJexasapp!eseed.neEindex.php?option^com_do(:?na?)&task^doc doM'r!!oad&gid=3 1 3S.hemid . 

New Orleans Workers' Center for Racial Justice, Detention Conditions and Human Rights Under the Obama 
Administration: Immigrant Detainees Report from Basile. Louisiana, 2009, at p. 10-1 1 . Available at 
littp:/Avww.nowcri.org/wp-coiiteiit/iiploads/2009.Tj7.-^detention-co ndit ions-rep ort. p df. 

New Orleans Workers' Center for Racial Justice. Detention Conditions and Unman Rights Under the Obama 
Admimstratton: Immtgrant Detamees Report fi'om Basile. Louisiana. 2009. at p. 10-1 1 . Available at 
Flip ''oyyys' no>- Liy -eonteiji'iipjo yO" dele’ipon-eondinon_r'-ri.p_()rl.pdr. 

Women's Refugee Commission. Migrant li omen and Children at Risk: In Custody in Arizona, Oct. 2010, at 5. 

■ Florida Immigrant Advocaev Center. Dvtng for Decent Care: Bad Medicine in Immigration Custody, Feb. 2009, 
at 27 Available at bfti’ w'^y' _fi'"Tk'i PkthSf''lP'-wcnr‘_' ne pJt See also Human Riglits Watch. 

Detained and Dismissed: Women 's Struggles lo Obtain Health Care In Untied States Immigration Delenlton, Mar. 
2009, at 29 (finding that appropriate treatment was often delayed or denied and that detainees sometimes were 
denied healthcare request in retaliation). Available al htiri:/.Avw\v.lii 'w. orgAiL''reports,-^2009/03/i6/detai n ed-and- 
dis inis s e d. 

U. S. Dept, of Homeland Security, Office of Inspector General. Management of Mental Health Cases in 
Immigrant Detention,” at 1 . .Available al http vwv i 1 "v AI__ i t_‘ >tt ]-623l6r Li pdf. See also, 

NatT Immigration Forum, The Math of Immizrant Detention: Ritna\va\> (. osts for Immigration Detention Do Sot 
Add Up to Sensible Policies, at 5. .Available at 

hUp:/Avvv\v.immi<:TaLionfonmi.or^/imac^csAiploads.A/lathoQniiniCTaiioriDcicn!iori.pdi~ . 


330 Second Avenue South ® Suite 800 * Minneapolis, MN S5402 ® USA 
Tel: 612.341.3302 • Fax: 612. 341.2971 ® Email: hrighcs@advrights.org * www.theadvocace 5 forhumanrighcs.org 



147 


Physicians for Human Rights, Dual Loyalties: The Challenges of Providing Professional Health Care to 
Immigration Detainees, Feb. 201 1, at 5. Available at 

bttp3: / 7s3.in i]a zonaw3.co.m/FIIR _R epo rts/201 ]__Du.ilLoy alli es Final 3_24 _2Q} 1 o pt .pdf. 

See Detention Watch Netivork, '‘Tracking ICE Enforcement,’'’ at 
littp://w v vw.dete i itio n \va tchn en-vork .o rg/no d e/23 S2. 

See American Civil Liberties Union website httpp/www.achi.oi^g/npaps.'sexual-^buse'itrimigration.-dUentioii- 
facililics (detailing findings of a Freedom of Infomiation Act request relating to complaints of sexual abuse). See 
also, Carrie Johnson. "Immigration Detainees Seek Prison-Rape Protection.” Nat’l Public Radio. Dee. 13. 201 1. 
Available rvf IjlJpA W' WUPi ] - 12, l_3H4 hoS? h'/irunig) i! o ■ d>..i iiO'-c eyk pij i r i q f i >Lt P >n 

See, e.g.. Canie .Tolinson. "Immigration Detainees Seek Prison-Rape Protection. Nat 1 Public Radio. Dec. 13. 
201 1. .4va//a6/(’ (Jthnp /rtiw, n^y >)ig.'2 ri L]2 13_l-i3ni,r<22!'_in!iin^] itn r del Lici _ ci. pi m n ’ ip_ pi(_L i‘ n 
Human Rights Watch. Detained and at Risk: Sexual Abuse and Harassment in bnited States Immigration 
Detention, Aug. 2010, at 3. Available at http:/A\wn.v. hrw.org/sitt. > u liUitlijcsup As .js isjo^.el n o’’ >.i pdl 
Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in L nited States Immigration 

Detention, Aug. 2010, at 3. Available at li tt p : Hyevox . h r w. or g / si le d a (h til o^ii '\ Vv! ix v,! pit 

Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in L niled States Immigration 
Deden/io??, Aug. 2010, at 3. .4va//i/6/e cl/ http_ dit mlf ale ici. uKjim x] >. 0 ’' t,’ nJl 
Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in Dnited States Immigration 
Detention, KAO, Available at -s hi u_oi_i^_itL-. di.! mh ' 1 >.s ’■(.rop U'! L'wr 1_ 

Human Rights Waich, Detained and at Risk: Sexual Abuse and Harassment in Lnned States Immigration 
Detention, Aug. 2010. at 4. Available at http tag ■- n iauli jiF '-_ur'’02! nd'xli ^^c■[ v t.( ^ c.' pdl 

Ilimian Rights Watch, Detained and at Risk Sexual Abuse and Harassment in bnited States Immigration 
Detention, Aug. 2010, at 4. Available at hth ' 'ri'vww lurt org'-JiCi d ,. ttuil t ik i- p at n ii'*- i ^ s.i pdl 

American Civil Liberties Union website, posted Oct. lo,20ll a\'ailahle a! \\0 y v~~a acln ig 1 n n n its- 
rights/sexual-abiise-immigi~ation-detcntion-raquels-stoiv . 

Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in bniled Stales Immigration 
Detention, Aug. 2010, at 16. Available at http : //w^vw .l i i'w. org /si a 1 1 ih Ii k jcp at-> u o ^'^Lmein . pdl 
See, e.g.. Women's Refugee Commission, "Docket No. GAG -131: AG Order No. 3244-201 1 
National Standards to Prevemt, Delect, and Respond to Prison Rape,”, Apr. 4, 201 1, (commenting on proposed 
regulations on implementation of the Prison Rape Hdiminalion Act which would exclude immigrant detention 
facilities), available at hLtpvVv^omcnsreui ge ccornrnission.org/programs/dcLention/l l_42pnjtiorjjii-slandards-jo- 
p.revent -dc t ecl-and ' res pond-to-prison-rape. See also Carrie Jolmson, “Immigration Detainees Seek Prison-Rape 
Protection,” Nat’l Public Radio, Dec. 13. 201 1. available at 

hrtp:7’'www.upr.org/201 1/i 2/13/143638236,/iramigration-derainees-seek-prison-rape-protection. Michelle Brane, 
"It’s Time to Protect Women and Children in Iimnigration Detention From Rape,” available at 
http:.''Avww.huffingtonpost.com-''michel]e-brt c m me is itp^.,l _U d" _ijii f 
Human Rights Watch, Detained and at Risk: Sexual .Abuse and Harassment in bnited Stales Immigration 
Detention, Aug. 2010, at 16-17. Available at 1 r*~p luw u d(.Iiu hii k i--].c rt jptUvH_i_ vrqidf. 

Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in bnited Stales Immigration 

Detention, 20\0, ai\l . Available al\\X\y V’y\ 1 iw de a l^ _s rt n^i'Sii 1 .I p r pdf 

Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in bnited States Immigration 
Detention, 20^0, iiXM . Available at \ \ h^^\ _ks lei uh ' le r>.i its !iq_xy )\ \^i|df. 

lltmian Rights Watch, ZU/rt/ziec/a/n/cj/RAA Stxiial 4A?ot and Haiassnunt in ! nit d Staus Immigiation 
Detention, Aug. 2010. at 19. Available at h e lp _3 A '''' b ’ ' (.s d 1 luF p 1 s lU'" * ‘ \ > p i.f. 

National Inmiigrant Justice Center, “Stop Abuse ot Detained LGBT Immiapants. at 
littp:/.Avww.iRmiigrantiustice.ora/stop-abiise-d e tained-igpt-immigram s . 

Jan. 4, 2012, letter from Members of Congress to the U.S. Govenunent AccountabiliN Office, at 
littp:.-''/po lis. house. g o v'Up l oade dF iles./'0 1 05 1 2_G AQ_ Detenti on_Let ter. odf 


330 Second Avenue South ® Suite 800 * Minneapolis, MN 55402 • USA 
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148 



Al LA National Office 
Suite 300 
1331 G Street NW 
Wasltlnoton. DC 20005 

Tef: 202507,7600 
Fax 2027837853 

wwwalla.org 


Testimony of the American Immigration Lawyers Association 

Submitted to the Subcommittee on Immigration Policy and Enforcement of 
the Committee on the Judiciary of the US Mouse of Representatives 

Hearing on; "Holiday on ICE The U S Department of Homeland 
Security’s New Immigration Detention Standards” 

March 28. 2012 

The Amencan Immigration Lawyers Association ( AILA) offers the 
following testimony to the Subcommittee on Immigration Policy and 
Enforcement regarding the Performance Based National Detention 
Standards 201 1 (PBNDS 2011). AILA is the national association of 
immigration lawyers with more than 1 1,000 active members and was 
established to promote justice and advocate for fair and reasonable 
immigration law and policy Every day. AILA members represent 
noncitizens in removal proceedings, thousands of whom are being held in 
immigration detention 


ICE has a vast network of over 250 facilities scattered throughout the 
United States which it uses to detain approximately 400,000 individuals 
each year — including thousands of asylum seekers, trafficking victims, 
parents and spouses ofU.S citizens, the elderly, and the sick Immigration 
detention is civil, not criminal, in nature Many held in immigration 
detention have never been charged with or convicted of any criminal 
offense These individuals, charged with civil violations of U S 
immigration law, are held in jails or jail-like facilities while they await civil 
immigration proceedings or removal to their home countries While some 
may spend a few days locked-up. others are jailed for months or even years 
as their ca.ses wend their way through the civil court process Many 
ultimately win their cases and arc released back to their families and 
communities in the L' S 


Liberty is a basic .American principle enshrined in the Constitution, and the 
government bears the res|Xiitsibilily to protect and provide basic care to 
those it deprives of liberty It is unconscionable that individuals die from a 
lack of medical care or neglect or are sexually or physically abused while in 
the government's custody Vet such neglect and abuse has been uncovered 
lime and again within the labyrinth of immigration detention The 
establishment and implementation of rigorous standards to govem detention 
facilities is urgently needed to help ensure that the government lives up to 
its responsibilily to those in its custody 



149 


The dire need for detention reform has been starkly illustrated over the past several years in a 
series of news stories, congressional hearings, and reports. One of the most visible cases of 
medical neglect was that of Francisco Castaneda, who died of penile cancer in 2008 at the age of 
36 after detention staff refused his numerous pleas for diagnosis and treatment during his eight 
month detention at a San Diego facility.’ A federal district court judge later called the staff s 
refusal of medical care “one of the most, if not the most, egregious” violation of the 
constitutional prohibition against cruel and unusual punishment that the court had ever 
encountered and concluded that the staff s behavior “should be taught to every law student as 
conduct for which the moniker ‘caief is inadequate.”^ 

In May 2008, The Washington Post published a 4-part series on the medical neglect suffered by 
immigrants in ICE detention.' The investigation, which included a review of thousands of pages 
of government documents as well as interviews with current and former detainees, found that 
immigrants with serious physical or mental health conditions “are locked in a world of slow care, 
poor care and no care, with panic and coverups among employees watching it happen.”'* One 
nurse, who quit after two months because of the medical practices she witnessed, told the 
newspaper that “dogs get better care in the dog pound.” ^ 

In addition to medical neglect, the immigration detention system has been plagued by incidents 
of sexual assault and abuse. In 2007, an ICE agent admitted to driving a female immigrant to his 
house and raping her before transporting her to an immigration detention facility in Broward, 
Florida. In 2010, a guard working at the T. Don Hutto Correction Center in Taylor Texas 
admitted to molesting female detainees that he was in charge of transporting.^ Last year the 
National Immigrant Justice Center filed 13 civil rights complaints with the Department of 
Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties alleging physical, 
psychological, and sexual abuse, as well as denial of medical care, of LGBT detainees.^ Most 
recently, in October 2011, PBS Frontline revealed multiple and chilling accounts of sexual abuse 
by guards at the Willacy Detention Facility in Raymondville, Texas, while government 


^ Henrv Weinstein, heels’ Actions ‘Beyond Cruel'. L.A, Times, March 13, 2008 (internal quotations omitted) 
available al liitD:.'Vajlicles.jatLmes.conf2n08./iitai/l.-,4Qcaj/inc-cfiiel 1 .3 
- Castaneda v. United Stales. 538 F. Siipp. 2d. 1279, 1290, 1298 n.l8 (C.D. Cal. 2008). 

Dana Priest and Amy Goldstein. Carless Detention: Medical Care in Immigrant Prisons. The Wasliington Post, 
May 11-May 14. 2008 available at htW: ' \vM'v<K\in:!shinponpostcomovp-sn'/nanon'SDer,iaiS. immigration index.ht ml 

Dana Priest and Amy Goldstein, System of Neglect, The Waslrington Post. Ma\’ 11, 2008 available at 
http:/Avmv.washingtonpost.com/wp-srsynation/special5/immigration/cwc_d I p 1 .html 
Md 

^ Immigration Agent Charged With Rape. Nalional Weekly. November 25, 2007 available at 
lUiD:/Av\v\v.cmveekl\iievvS,com/nevvs/iocal-[iesvs/646-iimniQi'aiion-ac'en!-charaed-vvilli-rape- 
' Jarrod Wise and Jackie Vega, Detention Officer Admits Groping IVomen, KXAN, August 20, 2010 cn-ailable al 
httn://^v^^'yv.kxan■Com/dpD/Tlews.doca1Avil!u^!^^son/detention-officer-adTnits-gropi^^^-w'Ol^en . 

^ Cindy Carcamo. Gay. Transgender Immigrant Detainees Claim Abuse in O.C. Jails. The Orange County 
Register, April 1 4, 20 1 1 available at hUp:/Av\v\v. ocregisler.com/arlicles/delenlion-296367-coTnplainls- 
iimmgralion.hliiil 


ATLA Testimony 


Page 2 of 5 



150 


documents show that nationwide immigrants have filed more than 170 allegations of sexual 
abuse since 2007, mostly against guards and other staff at immigration detention centers.*^ 

These incidents likely represent only the tip of the iceberg of abuse and neglect within the 
immigration detention system and demonstrate the urgent need for reform, including more 
stringent and comprehensive standards. In 2009, Dr. Dora Schriro, an expert on correctional 
policies and current commissioner of the New York City’s Department of Corrections, 
completed a comprehensive review of the immigration detention system on behalf of ICE. The 
development of PBNDS 2011 was a direct result of the findings and recommendations from that 
review. 

Critics, including members of this committee, have argued that PBNDS 201 1 are unnecessary 
and have suggested these minimum standards are overly hospitable for immigration detention. 
AILA disagrees with this grossly inaccurate characterization. Rather than oppose the creation, 
implementation, and rigorous oversight of detention standards, lawmakers should view them as a 
vital step in upholding our nation’s values and ensuring government accountability. 

While All. A urges the Administration to implement the PBNDS 201 1 as quicldy and thoroughly 
as possible, these standards alone are not enough to protect immigrants in detention. The 
PBNDS 201 1 are internal agency policy — they do not carry the force of law; the administration 
can change them at any time; and they are not legally binding. ATI. A remains concerned that 
ICE cannot hold facilities accountable relying solely on these new standards. 

Time and again, ICE has proven itself unable to safely and humanely manage its massive and 
sprawling immigration detention system. Whether and how detention conditions will be 
monitored and enforced depends solely on the commitment of current Immigration and Customs 
Enforcement (ICE) officials. Basic standards governing detention facilities cannot be subject to 
the fluctuating policy goals of ICE leadership, 

Over more than a decade, ICE and legacy Immigration and Naturalization Service have been 
extremely slow to implement standards. For example, four years ago ICE published the PBNDS 
2008, the precursor to the current PBNDS 2011. Yet many of the facilities ICE uses are still 
only held to the deficient National Detention Standards from 2000. ICE has not set forth a clear 
timeline for implementing the new PBNDS 201 1 at the approximately 250 facilities ICE uses to 
detain immigrants. 

To ensure that immigration detention facilities are safe and humane, detention standards should 
be established by statute. Congress needs to pass legislation, such as H.R. 933 (Roybal-Allard 
(D-CA) and Polis (D-CO)) that sets forth basic detention requirements intended to prevent 
mistreatment, injury, and death. The bill codifies standards for medical care, requires special 


^ CaiJicriiic Rcniz. //om' Much Sexual Abu h'e Gei^ "Lo^i in Detention ? ”, Fronllinc. Ociobcr 19. 2011 available at 

htT]:i:/Av\\w.pbs.orK/'WKbiVT)<it^es/froni'luie/r;ice-Tnu!ticniturai/1ost-iii-derentior7how-much-5exiifil-abuse-aets-lost-iii- 

detenjiori' . 

Dt. Dora Schriro, Immigration Detention Ovennew and Recommendations, October 6, 2009 available ai 
liU!):/Av\v\v-ice.GOv/dQclib./aboul'oriices.4idi:)D,^pdf/ice-deleution-rDl.odf 


ATLA Testimony 


Page 3 of 5 



151 


considerations for vulnerable populations, and sets forth minimal standards with respect to use of 
force and investigation of grievances, among other provisions. 

The Obama Administration should also apply the regulations developed as part of the Prison 
Rape Elimination Act (PREA) to immigrants in DHS custody to provide them with the same 
protections from rape and sexual assault as all others in federal custody. Enacted in 2003, PREA 
created a commission charged with developing national regulations to address the pervasive 
problem of sexual abuse in detention. In its report, the Commission found that detained 
immigrants are at particular risk of sexual abuse recognizing that “their heightened wlnerability 
and unusual circumstances require special interventions.''^^ Despite the clear intention of the 
Commission for all persons in federal custody to be included under PREA, the Department of 
Justice failed to cover immigration detainees in the draft regulations released in early 2011, 

DHS has resisted the applicability of these PREA regulations to immigration detention facilities, 
asserting that its own standards will meet or exceed PREA.^^ In fact PBNDS 201 1 falls far short 
of PREA in protecting against sexual assault. Among the more glaring deficiencies is the failure 
of PBNDS 201 1 to cover immigrants held by ICE and Customs and Border Protection (CBP) in 
short-term detention. PBNDS 2011 also lacks the more rigorous audit requirements set forth in 
PREA draft regulations. As noted before, PBNDS 201 1 are only internal agency policy whereas 
PREA will be established in regulations. It makes no sense for a population of inmates as 
vulnerable as immigrants to be left outside protections that will be granted to all others in federal 
custody. 

Finally, but most fundamentally, reliance on immigration detention must be reduced. Locking 
up individuals facing civil immigration charges should be a last resort — used only when other 
means of supervision cannot mitigate flight risk or threats to public safety. Detention is 
expensive, both in terms of human and fiscal costs. American taxpayers currently spend $2 
billion a year to detain 34,000 individuals each day — an arbitrary, congressionally-mandated 
number not based on any demonstrated need. 

The better solution is to make more effective use of ICE' s supervision and monitoring methods 
on an as-needed basis. The criminal justice system has long recognized that detention is only 
one of a spectrum of tools, ranging from bail to GPS tracldng devices, it can use to ensure public 
safety and eliminate risk of flight. These tools are effective means to achieve the same ends as 
detention, without placing individuals unnecessarily at risk. ICE has begun to implement such 
alternative methods but continues to rely heavily on costly and often unnecessary detention. 

Taking away one’s liberty is a power that must be exercised carefully and with restraint. In the 
conte.xt of civil immigration proceedings, it must be utilized as a last resort. When someone is 
jailed, our government bears the responsibility for providing an environment free of neglect and 


National Prison Rape Elimmalion Commission Report: Special Populations, Chapter 9. available at 
htTp://c>'berceTneTeiyMmt.edii/archive/nprec/2()()9()82()1552()8/http://nprec.us/publication/report/part_.Tphp#chfipter_ 
9 

John Morton, Director, TniinigTalion and Cusloins ETiforceinenl, testifying before the Snbconnnillee on Homeland 
Security, Coimiiiitee on Appropriations of tlie House of Representatives, March 8, 2012. 


ATLA Testimony 


Page 4 of 5 



152 


abuse. Implementing PBNDS 2011 is one step in ensuring that the government fulfills that duty, 
but on its own these non-binding standards cannot accomplish what the U.S. must do to ensure 
immigration detention is safe and humane. 

For follow-up, contact Gregory Chen, Director of Advocacy, 202/507-7615, nchen@.aila.org or 
Alexsa Alonzo, Associate Director of Advocacy, 202/507-7645, aalonzo@.aila.org. 


ATLA Testimony 


Page 5 of 5 



153 


4 _ 

NATIONAL 

k 

IMMIGRATION 

□E 

FORUM 


Statement for the Record 
March 28. 2012 

House Subcommittee on Immigration Policy and Enforcement 

"Holiday on ICE: The U.S. Department of Homeland Secimity's New Immigration 

Detention Standards" 

Introduction: 

The National Immigration Forum works to uphold America’s tradition as a nation of 
immigrants. The Forum advocates and builds support for public policies that reunite 
families, recognize tlie importance of immigration to our economy and our 
communities, protect refugees, encourage newcomers to become new .Americans and 
promote equal protection under the law. 

ICE Detention- Positive First Steps Taken Toward Needed Reform: 

The National Immigration Forum welcomes tliis hearing on the Immigration and 
Customs Enforcement (ICE) immigration detention system and the administration’s 
new detention standards. In light of the growing costs of immigration detention, tlie 
sprawling size of the detention system, and the numerous concerns and critiques about 
immigration detention over the years, this conversation has been needed for some time. 

Not only are the 2011 PBNDS not 'hospitality guidelines,' they're no more than a good 
first step toward addressing the safety and human rights deficiencies that leave 
immigrant detainees vulnerable to abuse and medical emergencies— and that's if they're 
actually implemented, which remains to be seen. 

We begin with why reform, including improved detention standards, is necessary. First, 
the costs of immigration detention are enormous, and often unnecessary. Given the high 
expense and humanitarian concerns surrounding the use of immigration detention, 
more humane and cost-effective alternatives should be pursued. Many immigrants who 
are currently detained can be effectively monitored with alternative methods, such as 
telephonic and in-person reporting, curfews, and home visits. Alternatives can range in 
cost from as low as 30 cents to 14 dollars a day per individual. By comparison, it costs 
ICE an average of Si22 per day of detention for each detainee. Alternative methods also 
have proven effective; in Fiscal Vear (!■■¥) 2010, alternatives to detention had a 
compliance rate of 93.8 percent. Thus, ma.\imizing the use of alternatives to detention 
has the potential to save taxpayers millions of dollars annually as is chronicled in the 
National Immigration Forum’s paper. The Math of Ininiicration Detention. 

Second, the conditions of detention for those in ICE custody are not appropriate, 
consistent, or sufficient. We applaud ICE for issuing improved detention standards. 
Despite being characterized as "hospitality guidelines’' by the Chairman of the Judiciary 
Committee, the 20H Performance-Based National Detention Standards (PBNDS) 


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provide common sense guidance on the ireatmcnl of those in immigration detention. 
Many of these standards have been drafted in response to unacceptable conditions of 
detention or mistreatment of detainees. The National Immigration Forum has 
chronicled a parade of critical assessments and scathing reports that have been 
published by non-govemmental organizations, advocates, and academics about 
immigration detention over the last 4 years in a ] 


Medical care for detainees illustrates one as]')ect of immigration detention that has 
received notoriety. Under pressure to address incidents of substandard and even fatal 
medical care at facilities ICE uses to hold immigrants— more than 120 immigrants have 
died in ICE custody since 2003— ICE's latest detention standards require that medical 
service requests be received and triaged by medical personnel witliin 24 hours. 

In addition to improved medical standards, the 2011 detention standards also institute a 
sexual assault response team to help victims of sexual abuse access proper medical, 
crisis intervention and mental health services. These teams come not a moment too 
soon. According to the American Civil Liberties Union (ACLU), since 2007, more than 
180 sexual abiLse complaints were reported in immigration detention centers. But this 
number may barely scratch the surface; experts believe that the real incidence of sexual 
abuse is much greater because of unreported cases. Immigrants in detention are 
extremely vulnerable to abuse, due to language barriers and fear that if they report the 
abuse, they will be deported in retaliation. 

These revised detention standards are an important step for ICE to make good on its 
promise of bringing accountability and safety to our nation's sprawling immigration 
detention system. 

Despite the PBNDS 2011. Concerns About Detention Facilities Remain: 

As positive as the 2011 PBNDS may be, major concerns remain. First, these standards 
are not yet in effect in any detention facilities. As long as detention facilities fail to 
implement these upgraded standards, there will be no improvement in the detention 
conditions that approximately 33,000 immigration detainees experience each day. 
Director Morton stated recently that when negotiating future contracts with detention 
facilities it will be non-negotiable that these new standards be included as part of any 
deal. However, this remains to be seen and does not affect the scores of facilities 
currently holding ICE detainees. In fact, many facilities currently in use by ICE have not 
even implemented the 2008 detention standards and are operating under the 2000 
standards. Violations of the standards often occur without consequences. 

Besides the fact that these new and improved standards have nut been implemented, 
there are areas where even if they were implemented they would still fall short. For 
example, in 2003 a unanimous Congress passed the Prison Rape Elimination Act 
(PREA). This was the first ci\il law that focused on eliminating sexual abuse in 
detention. However, the Department of Justice proposed rule in January of 2011 wotild 
exempt DHS, and therefore all immigration detention, from PREA requirements. While 
the 2011 PBNDS, as tliey relate to sexual abuse, are an improvement from earlier 


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J NATIONAL 

at IMMIGRATION 
FORUM 


versions, they still fail to meet standards set by PREA in areits such as provisions for 
confidential reporting and protection from retaliation, requirements for proper criminal 
investigations of assaults and specialized post -assault training for investigators and 
medical staff, and the appropriate use of detainee screening, background checks for 
employees and applicants, and use of incident reviews, outside audits, and 
unannounced rounds to ensure proper policy implementation. 

Furthermore, the latest PBNDS don't address the fundamental contradiction of 
immigration detention centers operating like, if not identical to, correctional 
institutions. Our immigration detention system Ls supposed to serve a limited puqwse 
— to ensure that individuals comply with deportation proceedings, separate from the 
punitive function of tlie criminal justice system. In 200Q, the Obama Administration 
pmmised to make immigration detention "a truly civil" system, with appropriate 
conditions for asylum seekers and immigrant detainees, many of whom pose no threat 
to public safety and are not a flight risk. Yet despite the administration’s good 
intentions, there is often no tangible difference between immigration detention and 
criminal custody. 

In sura, we applaud DUS for introducing the 2011 PBNDS. However, concerns remain 
around their implementation, their ability to prevent se.\ual abuse, and the financial 
burden of our enormous immigration detention system. Specifically, the PBNDS must 
be implemented at immigration detention facilities nationwide and not just posted on 
the ICE website. Tlie administration also needs to keep its promise of a creating a “truly 
civil system," by expanding the use of alternatives to detention that are equally effective 
but save taxpayers millions. These steps would go a long way toward meaningful reform 
of our chronically troubled immigration detention .system. 


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HUMAN 
A I Q H T S 
WATCH 


Human Rights Watch Statement to the 
Subcommittee on Immigration Policy and Enforcement, 

Committee on the judiciary, 

United States House of Representatives 

Hearing on the Department of Homeland Security's New Immigration Detention Standards 

March 28, 2012 


Mr. Chairman and members of the Committee, thank you for the opportunity to submit a 
statement for today’s hearing on the US Department of Homeland Security's new detention 
standards. 

Human Rights Watch is an independent organization dedicated to promoting and protecting 
human rights in some 90 countries around the globe. We work to secure increased 
recognition of and respect for internationally recognized human rights in the United States, 
focusing on issues arising from excessive punishment and detention, insufficient access to 
due process, and discrimination. 

Immigration detention is no holiday. 129 detainees have died in ICE custody since 2003,' 
and there is credible evidence that poor medical care in detention contributed to a number 
of those deaths.* 


' ICE records Indicate that 127 detainees died between October 2003 and December 19, zoii. ICE Health 
Service Corps (formerly the Division of Immigration Heath Services). “List of Deaths In ICE Custody October 
2003 • December 19, 201J.’’ hftp://www.ice.gov/docllb/foia/reports/detaineedeath52oo3-present.pdl 
(accessed March 22, 2012). ICE has announced two detainee deaths In 2012. ‘ICE detainee passes away after 
being rushed to local hospital,” lanuary 18, 2012, 

http://www.lce,gov/news/releases/i2oi/i2oii8lasvegas.htm (accessed March 22, 2012); “ICE detainee 
passes away at Los Angeles-area hospital; Mexican national was being treated for pneumonia,” March 5, 
2012, htlp://www.lce.gov/news/relcases/i203/i20305vlctorville.hlm (accessed March 22. 2012). 

' See e.g. Florida Immigrant Advocacy Center, Dying for Decent Care; Bad Medicine In Immigration Custody, 
March 17, 2009, http;//www.flacfla.orgy repoi1syDylngFDrDecentCare.pdf (accessed March 22, 2012); Dana 
Priest and Amy Goldstein, “System of Neglect,” Washington Post, May 11, 2008, 

http://www.washlngtonpost.com/wp.siv/nation/speclals/lmmlgratlon/cwc_dipi.html (accessed March 22, 
2012); Nina Bernstein, “III and In Pain. Detainee Dies in U.S. Hands," New York Times, August 12. 2008. 
htlp://www.nytimes.com/2008/o8/i3/nyregion/i3detain.html?_r=i (accessed March 22, 2012). 


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The 2011 Performance Based National Detention Standards published by Immigration and 
Customs Enforcement (ICE) represent an important step toward ensuring the safety of 
immigrants in detention. Among the improvements in the standards is the establishment of 
a new standard addressing women's medical care.’ The standard addresses a longstanding 
failure to adequately attend to the health of women in detention. In 2008 and 2009, Human 
Rights Watch conducted research into the medical care provided to women in ICE detention. 
As part of that research, we visited nine detention centers in Florida, Texas and Arizona, and 
spoke with detention medical care providers and ICE officials, in addition to numerous 
immigration attorneys and advocates. We conducted in-depth interviews with 48 women 
who were in detention or had recently been released from custody. As detailed in our March 
2009 report. Detained & Dismissed: Women's Stniggles to Obtain Health Care in United 
States Immigration Detention, we documented dozens of cases in which detention center 
medical staff either failed to respond at all to health problems of women in detention or 
responded only after considerable delays.* 

The impact of these institutional failures on individual women underscores the urgency 
behind the reforms ICE is currently implementing. )ameela E., a former ICE detainee, spoke 
with Human Rights Watch in 2008 and explained how her attempt to seek asylum in the 
United States had taken her from one nightmare into another.’ For almost four months, ICE 
shuttled Jameela between four county jails in Virginia. During this time, she battled with 
pain over half of her body due to a cyst on one of her ovaries that went untreated while she 
was in custody. At the first jail, they determined that she required treatment and began the 
process to make arrangements for surgery. But in the meantime ICE moved her, without her 
medical records, to another jail where they refused to provide treatment without the 
records. She started getting her period every two weeks and put in multiple requests to 
consult a doctor without success. Making it worse, at one place she was detained, she said 
they did not provide undenrvear. At none of the jails did they allow her to wear her hijab. At 
each jail she was strip searched. Her mental health suffered from the humiliation, and when 
she asked to speak to a psychologist they took her to be suicidal and placed her in solitary 
confinement. 

Unfortunately, jameela's experience was not unusual among the women Human Rights 
Watch interviewed. Her story reflected recurring themes from our research. Human Rights 
Watch found that women in immigration detention did not have accurate information about 
available health services. Care and treatment were often delayed and sometimes denied. 


' Medical care (women). Section 4.4, ICE Performance-Based National Detention Standards (PBNDS), 20» 
Operations Manual, hllp://www.lce.gpv/docllb/detentlon.standatds/2oit/medlcal_care_wamen.pdl 
(accessed March 22, 2012). 

‘Human Rights Watch. Detained and Dismissed: Women's Stniggles to Obtain Health Care In United States 
Immigration Detention. March 17, 2009, http://www.hrw.org/e.n/reports/2009/03/i6/detalned-and- 
dlsmissed-o (accessed March 22, 2012). 

’ Human Rights Watch Interview with Jameela E., Virginia, June 2008. 

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Conridentiality of medical information was often breached. Women had trouble accessing 
facility health clinics and persuading security guards that they needed medical attention. 
Interpreters were not always available during exams. Security guards were sometimes 
inside exam rooms even when there was no security risk, invading privacy and encroaching 
on the patient-provider relationship. Some women feared retaliation or negative 
consequences to their immigration cases if they sought care. A few were not given the 
option to refuse medication or received inappropriate treatment. Many detained women and 
their health care providers at other facilities were not able to obtain full medical records 
upon transfer or release. Women’s written complaints about poor medical care through 
official grievance procedures went ignored. The list goes on. 

One detainee. Lucia C., had obtained a Pap smear prior to her detention and learned that 
the result was abnormal.* Her doctor instructed her that she should follow up with Pap 
smears every six months to check for signs that cervical cancer was developing. When ICE 
detained her at a county jail in New jersey, Lucia brought her situation to the attention of 
medical authorities. Initially rebuffed, she persisted: 

“I was supposed to be checked every six months. I asked my daughter to send the records. I 
got it and I brought it to medical so they could see I’m not lying. I have asked a lot of times." 

Speaking with Human Rights Watch after almost i6 months in detention. Lucia C. reported 
that the medical staff still had not provided her a Pap smear. “It’s terrible," she said, 
“because you feel like you have something you can die for™ and you don’t have no 
assistance." 

During our research, we met women who required screening and treatment for breast and 
cenrical cancer but experienced extended delays and outright denials. We met women who 
complained of inadequate care during pregnancy, including one diagnosed with an ovarian 
cyst— threatening her five-month pregnancy shortly before she was detained— who never got 
to see a doctor. We met pregnant women who did get a doctor’s appointment, but who were 
forced to be shackled in order to get there. We met mothers who were nursing their babies 
prior to detention and were then denied breast pumps in the facilities, resulting in fever, 
pain, mastitis, and the inability to continue breastfeeding upon release. We met women 
who had to beg. plead, and in some cases do chores within the facility just to get enough 
sanitary pads not to bleed through their clothes, and one woman who sat on a toilet for 
hours when the facility would not give her the pads she needed. We met women who sought 
mental health care for pre-existing conditions, including the effects of trauma and for the 
stress of detention, but found that the crisis orientation of services meant they could not get 
access to counseling and could expect to be put in isolation if their condition deteriorated 
to the point of suicidality. 


‘ Human Rights Watch Interview with Lucia C., New jersey. May 2008. 

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Particularly striking are the backgrounds of the women enduring these conditions. They 
included asylum seekers, victims of trafficking, sun/ivors of sexual assault and domestic 
violence, pregnant women, and nursing mothers. In almost all of these cases, the women 
we were talking to had either committed no crimes at all or no crimes ofviolence. They had 
not been found to present a danger to the community or to be a flight risk and yet they 
became entangled in a system of immigration enforcement that relies disproportionately on 
detention, and provides immigrants with health care that Is in some respects inferior to that 
available to imprisoned criminals. 

In most cases, detention is neither necessary nor cost-effective. Studies have shown that 
alternatives to detention - such as supervised release programs -cost roughly one-fifth as 
much and are as effective in ensuring that people show up for their immigration hearings.' 
Consequently, a major first step in addressing the gross medical failures in detention 
should be ensuring that fewer people are subjected to them unnecessarily, through the 
increased use of alternatives to detention such as humanitarian parole. But the second step 
is recognizing that the government cannot avoid the responsibility of providing quality 
health care to those it detains. 

ICE'S publication of the new detention standard on women's medical care is a step in the 
right direction. The standard requires that women in detention have access to the 
screenings for cancer that are the pillars of basic women's health care, and that proper care 
be provided for women during pregnancy. The new standard also provides for ICE to screen 
detainees to determine whether they have experienced sexual violence, a crime that occurs 
all too frequently during the course of migration. The standard's provisions on access to 
abortion services are in keeping with constitutional requirements' and will bring ICE into 


' For example, From 1997 to 2000 the Vera Institute of Justice cooperated with tfie Immigration and 
Naturalization Service, a predecessor to ICE, to pilot an alternative to detention model called the Appearance 
Assistance Program. Through the AAP, Individuals In immigration proceedings participated in a supervised 
release system wherein they regularly reported lo a case manager and were provided with Information on 
their legal rights and referrals lo community resources. The Vera Institute reported that 91 percent of 
participants in the intensive supervision program appeared for all of their required hearings. Eileen Sullivan, 
et al., Vera Inslllute of Justice, "Testing Community Supervision lor the INS; An Evaluation of the Appearance 
Assistance Program," August 1, 2000, hllp://www.vera.org/download7Flle-6i5/flnalteport.pdf (accessed 
March 22, 2012), p. II. A similar undertaking by Lutheran Immigration and Refugee Service focusing on 
asylum seekers and working with community shelters reported a 96 percent success rale. Esther Ebrahimian, 
"The Ullln 22; Shelters and Legal Service Providers Offer Viable Alternatives to Detention," Detention Watch 
Network News, August/ September 2000, p.8., quoted in "Statement From Faith Representatives Following 
April 30 Tour of the Wackenhut Detention Center," House Judiciary Committee, Subcommittee on 
Immigration, May 3, 2001, http://www.loc.gov/law/flnd/hearings/pdF/00092836976.pdl (accessed March 
22, 2012), p.85. 

* In Esteite v. Gamble, the landmark case defining custodial responsibility for medical care, the US Supreme 
Court held that the eighth amendment prohibits "deliberate Indifference" on the part of detention authorities 
to a "serious medical need" of a prisoner In their custody. Estelle v. Gamble, U.S. 97, loq (1976). The US 

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line with the standards used by the US Bureau of Prisons.* Similarly, the limitations on the 
use of restraints on pregnant women will bring ICE into the fold of custodial authorities at 
the state and federal level, as well as state legislatures, which have instituted prohibitions 
on shackling pregnant women, particularly during labor and delivery.™ In addition, the 
Eighth Circuit of the US Court of Appeals ruled in 2009 that shackling a woman during labor 
violates the US Constitution." These developments contribute to a growing international 
consensus that shackling in these circumstances is an intolerable practice, irreconcilable 
with human rights principles, along with prohibitions against torture and inhuman or 
degrading treatment.™ 


Court of Appeals for the Third Circuit has recognized access to elective, non-lherapeulk abortions as a 
serious medical need. Monmouth County Correctional Institutional Inmates v. Lamaro, 83A T-ad 326, 351 (3d 
CIr. 1987). While disagreeing with the finding of a serious medical need, the Eighth Circuit nonetheless 
invalidated a ban on transporting Incarcerated women for abortion on the basis of its unreasonable 
restriction on a woman's right to abortion under the fourteenth amendment. Roe v. Crawford, 514 F.gd 789 
(8lh Cir. 2008) (holding that elective, nontherapeutlc abortion is not a serious medical need under the eighth 
amendment, but banning transportation for prisoners seeking abortions constituted an unreasonable 
restriction on the fourteenth amendment right to seek an abortion). See also Doe y. Arpalo, 150 P.gd 1258 
(Ariz. 2007) (cert denied, 128 S.Ct. 1704, March 24, 2008) (holding that requiring court order for 
transportation to abortion procedure was Impermissible because it constrained the Incarcerated woman's 
constitutional right to terminate her pregnancy without a reasonable connection to a legitimate penological 
Interest). Bui see Victoria W. v. Larpenter. 369 F.3d 475 (sth Cir. 2004) (finding the requirement of a court 
order was reasonable where It was required for all elective procedures and the asserted state Interest was 
Inmate security and avoidance of liability). The obligation to ensure that Incarceration does not force a 
woman to forfeit her constitutional right to abortion has also been interpreted to Include ensuring access to 
funding for the procedure. Monmouth County, 834 F.3d at 352. 

° Federal Bureau of Prisons, US Department of lustice, 'Program Statement: Birth Control, Pregnancy, Child 
Placement and Abortion,” No. 6070.05, August 6, 1996, sec. 551.23. 

^ See e.g. Federal Bureau of Prisons. US Department of lustice, "Program Statement: Escorted Trips,” No. 
5538.05, October 6, 2008, sec. 11; U.S. Marshals Serv., Policy 9.1 (Restraining Devices) §§ (0)(3Ke), (h) (as 
amended In 2008>, Cal. Penal Code $ 5007.7 (Deering 2012); 73a III. Comp. Stal. Ann. 5/3-6-7 (Lexis 2011); Vt. 
Stat. Ann. lit. 28, § 801a (2012), N.Y. Correction Law § 611 (Consol. 2012); Tex. Gov't. Code Ann. § 501.066 
(Lexis 2012): N.M. Stal. Ann. § 33-1-4.2 (Michle 2012): Nev. Rev. Slat 209.376 (2012), Haw. Rev. Stal. Ann. § 
353-122 (Michle 2011); Idaho Code § 20-902 (Michle 2012): R.l. Gen. Laws § 42-56.3-3 (2012); Col. Rev. Slat. § 
17-1-113.7 (2011)1 Wash. Rev. Code Ann. § 70.48.500 (Lexis 2012)1 Gi Pa. Cons. Stal. Ann. S 5905 (Lexis 2012)1 
and W. Va. Code § 25-1-16 (Michle 2011)1 An Act Amending Title 31. Arizona Revised Statutes. By Adding 
Chapter 51 Relating to Restraints on Pregnant Prisoners, 2012 Ariz. Sess. Laws 43 (Lexis 2012). 

” Nelson V. Correctional Medical Services, 583 F.3d 522 (Sth CIt. 2009) (en banc). 

” See United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), 
adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 
held at Geneva In 1955. and approved by the Economic and Social Council by Its resolution 663 C (XXIV) of 
fuly 31. 1957, and 2076 (LXII) of May 13, 1977, rule 33. See also United Nations Committee against Torture. 
"Consideration of Reports Submitted by Stales Parties under Article 19 of the Convention, Conclusions and 
recommendations of the Committee against Torture, United Stales of America," CAT/C/USA/CO/2, July 25, 

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The new standard on women’s health care, along with the package of revised detention 
standards, should help address some of the serious violations we have documented over 
the past four years. Congress should support, not attack, measures by agencies to respect 
the health and safety of people they confine. 

The 2011 standards, helpful as they are, however, are simply insufficient to address the 
current risks to health and safety faced by immigration detainees. Unlike administrative 
regulations, which are created through a public process and can be enforced in courts, 
these standards were written internally and are not legally binding. The standards are not 
guaranteed to apply to all facilities housing detainees. Where the standards do apply, 
monitoring compliance with the standards will differ depending on whether the facility is 
run by ICE or by a private company. The 2011 standards also explicitly exclude short-term 
immigration detention from coverage. 

ice’s inability to adequately ensure the health and safety of its immigration detainees 
stems from deep flaws that underlie the agency’s detention system. These flaws remain 
unresolved by the new standards. ICE continues to incarcerate immigrants who have no 
criminal histories and are not flight risks. ICE runs an immigration detention system 
modeled around punitive criminal detention, even though immigration detention is not 
supposed to serve to punish. It is governed by a patchwork of weak and unenforceable 
policies. The 2011 detention standards will provide needed updates to this patchwork, but 
by themselves are insufficient to address all of these flaws. They do little to moye the 
immigration detention system towards a civil model of detention, and they do nothing to 
address the problem of unnecessary detention. We recommend that Congress work with the 
administration to reexamine the role of detention in our immigration policy and question 
the necessity of depriving individuals in civil immigration proceedings of their freedom. 


2006, http://daccess-ddS'ny.un.oig/doc/UNDOC/GEN/Go6/432/2S/PDF/Go64323S.pdf70penElemenl 
(accessed March 22, 2012), para. 33; United Nations Human Rights Committee, "Consideration of Reports 
Submitted by States Parties under Article 40 of the Covenant, Conclusions of the Human Rights Committee, 
United Slates of America,'' CCPR/C/USA/CO/3/Rev.i. December 18, 2006. http://daccess-dds- 
ny.un.0rg/doc/UNDOC/GEN/GoG/459/61/PDF/GoG4596t.pdf7OpenElemenl (accessed May 11, 2009). para. 
33 - 


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human rights first 

Slatcment uf Human Righte First 

House Judiciary Subcommillec un Immigration Policy and Faforccmenl Hearing 
“Holiday on ICE: The LI.S. Department of Homeland Security’s New Immigration Detention 

Standards” 

March28.2UI2 


Introduction 

Human Rights Rrst is an independent advocacy organiaaiion that challenges our country to live up to 
its ideals. We press American institutions — including government and business — to respect human 
rights, seeking to close the gap between values and action. We believe that on human rights, the Linilod 
Slates must be a beacon. Activists TighUng for freedom around the globe continue to look to us for 
inspiration and count on us for support. Upholding human rights is not only a moral obligation; it's a 
vital national interest. America is strongest when our policies and actions match our values. Consisieni 
with these principles. Human Rights First advocates on behalf of refugees and asylum seekers, 
including by running a legal repre.sentation program for both detained and nun-detained asylum 
seekers, partnering with law firms in New York, New Jersey, and Washington D.C. to provide pro 
bono legal assistance to refugees from countries all over the world who are seeking asylum in the 
United States. For several years. Human Rights First has focused on the U.S. detention of asylum 
seekers, highlighting concerns about iheir detention in jails and Jail-like facilities, the lack of 
individualized assessments and independent review of the need to detain, insufficient use of 
alternatives to detention, and major challenges asylum seekers in detention face accessing legal 
counsel. Given that the focus of this hearing is immigration detention standards this testimony focuses 
primarily on the conditions of immigration detention. 

The conditions and practices in the U.S. immigration detention system have long been out of step with 
America’s fundamental values and long-standing vision of liberty . Each day the U.S. Immigration and 
Customs Enforcement (ICE) detains up to 33,400 people in more than 21i0 jails and jail-like facilities 
nationwide. The limited purpose of this civil detention, as esplained by ICE, is to ensure that 
immigranis in proceedings or with orders of removal show up for their removal hearings and comply 
with removal orders when relevant. However, in the jails and jail-like facilities used lo detain 
immigrants and asylum seekers tinder the immigration laws, these individuals wear prison uniforms 
and are often handcuffed or shackled when transported or appearing in court. 'Fhey live behind locked 
doors in thick cement-walled housing units, typically spending 23 hours a day in the same room where 
they eat. sleep, shower, and use the toilet without privacy. In almost all cases their freedom of 
movement within the facility is limited to the crowded "pod" where they live. Under minimum 
requirements, they receive an hour a day of outside recreation, and "ouiside" may be a room with an 
opening to the sky. Often, when family members visit, even children, they're only allowed lo speak hy 
phone and see each other Utrough a Plexiglas barrier. At an average cost of $ 1 22 per person, per day, 
the U.S. immigration detention system costs taxpayers over $2 billion annually, despite the availability 
uf less costly, le.vs restrictive and highly succe.vsful alternative lo detention programs. 



163 


Widespread. Bi-Partisan Critidsm of Chronic Problems in II.S. Immigration Detention Praclicts 

A range of non-partisan and bipartisan groups such as U.S. Commission on Intemationai Religious 
Freedom, the Council on Foreign Relations ta.sk force on immigration policy, and the Constitution 
Project's Liberty and Security Committee have all concluded that jails and jail-like facilities are 
inappropriate and unnecessarily costly to hold asylum seekers and other civil immigration detainees.' 
Repons by these groups and others have highlighted the pervasive use of shackles and overuse of strip- 
searches and solitary confinement. They detailed chronic challenges with access to legal counsel and 
telephones, excessive transfers, noncompliance with existing standards, and interference with the open 
practice of religion. In 2008. investigative reporting by The New York Times. The Washinxion Post 
and 00 Miimies revealed widespread medical neglect, unrepurted deaths and suicides, and forced 
sedation of detainees by immigralioit officers. 

This is not the first time the House Judiciary Committee has taken notice of the challenges facing our 
nation's immigration detention system. On June 4. 2008. this Subcommittee - then under the 
Chairmanship of Representative Zoe Lofgren (D-CA/lo"')- held a hearing tilled “Problems with 
Immigration Detainee Medical Care." during which Ann Schofield Baker, a Principal in the New York 
office of the law firm McKool Smith and pro bono attorney with Human Rights First’s asylum 
representation program, te-stified about the repealed incidents of medical mistreatment, incompetence 
and neglect her client, a female refugee and survivor of torture from Somalia suffered at the Elizabeth 
Detention Center lEDC) in New Jersey in 2007.^ At EDC. Ms. Schofield Baker's client was 
misdiagnosed as psychotic and forced to lake a strong anti-psychotic drug that made her dizzy, 
disoriented and confused. The drug caused her to shake uncontrollably. She was vomiting regularly 
and begait laclating. Her attorney repeatedly contacted medical officers at the facility to express 
concerns about this inappropriate and damaging medical ireatroent. olTering on repeated occasions to 
make an interpreter available during her client's medical visits. Nevertheless, staff at the facility 
continued to medicate Ms. Schofield Baker's client without the help of an interpreter. At the advice of 
the private doctor retained by her lawyer, who detennined that she did not suffer from a psychotic 
illness, she stopped taking the medication. While in detention Ms. Schofield Baker's client also 
experienced severe abdominal pain. Ms. Schofield Baker described writing letters to medical staff and 
calling both ICE and medical staff repeatedly. Weeks of constant advocacy went by before she 
received meaningful medical attention. She was only brought to the hospital the day after Ms. 

Schofield Baker threatened to file a habeas petition in federal court.’ 

Nationai Corrections Expert Reviews Immiaratlon Detention System. ICE Initiates Reforms 

In February 2009. DHS Secretary Janet Napolitano appointed a longtime expert on prison systems to 
serve as her Special Advisor on immigration and Customs Enforcement and Detention and Removal - 


' tl.S. OrnimtssitMi on tnlumulionnl Rrli^ioUk t-ivcUoni. RsvTufH Seekers in hepeiineti Hemneil. ViXurne t: f'lrutingt A Xertunmeinlaiiniw 
( W'ashuizlvn. IX': tJSt'IRt-'. 2005). p IKV; CouiH-tlnn l'«rci]in KelalH'ns loJcpsuacnl Tusk I'ofccvn U.S. Inimipnluin Pplicy. 
intiepenJcHl Task f’nrcr Hepitn N<i. ftJ — t*.S. Immigralktn htliry {fiev/ York: CFR. 200VK p. J2; ('iNlbliluiitin Projeiki, RectunmanJatnut^ 
fork^orming Our InmiigrtaUnt DeieHtkm Syiitm aiui Rmmaimg AfCtxs r/> VuMHsei In hmigntiiaH Pn*i'fntiug.i DC: 

Krojcct, ZOOM), ji. 1. 

with Immigmlion OeliiintfC Mcdicnl Cnre,*' I Inutc JitUiciary Suhcikmniitltfc mh IniniijuiUiiin. ('ili/imfchip. 
Kefu^evv OiirUcT Security. eitJ tnlcmationitl I tiw. June 4. ZOOS. I)e«rtn^ >nri>nnelH>n uvailut'k* <*1 
//ju.lu:iiiiv.b.uiM; tuinl 

Tcstimuny of Ann SctK>nck) Baker, ‘'ikurnip on; ProMomi %Ub Iminiyraitun Iktaittoe Mcdicnl Cutv.*' I Ioukc iuJicMry SulKominiUtfU 
un IrntniiniUon. CiluiaKhip. Keruj|!ue>, SeettrB). imk) InlemniionRi Ijiw. lunv 4. ZOOK, u^fiilnl'k' h< 

(Uli‘.//iuJ>citil\ liiHJAc uuvAknuing».^|Kll/Bakrrt»SOt»<l»l.i'Jf 


2 



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following years of criticisni of the ll.S. immigration detention system, including in a number of U.S. 
government reports. Dr. Dora Scliriro had previously run the corrections systems in Arizona and 
Missouri, and she currently serves as Commissioner of Correction for New York City.'" As the DH.S 
Special Advisor. Dr. Schriro spent the six months visiting detention facilities across the country, 
analyzing ICE and DHS data and other records, and reviewing reports from the federal government, 
the UN refugee agency, the American Bar Association, and many nongovcmmental organizations. She 
also interviewed facility staff, detainees, federal, state, and local government officials, and members of 
Congress and their staffs. This research resulted in a report that was delivered to Secretary Napolitano 
in September 2009 and released to the public in October 2009.' 

Dr. Schriro's findings and recommendations created the blueprint for ICE’s reform efforts, which 
include promises to improve medical care, custodial conditions, fiscal prudence, and oversight as well 
as to shift away from its reliance on a "iienal" model of detention that is inappropriate for the purpose 
of ICE detention and inconsistent with its civil detention authority.” These “civil" or "less penal" 
conditions - as described by ICE - would include increased outdoor access, cunuict visitation with 
families, and "non-institulional" clothing for some detainees. A few facilities - including the facility 
opened this month in Karnes County. Texas, or Delaney Hall, which opened in October in Newark. 
New Jersey - are designed to present templates for a more appropriate approach to immigration 
detention. 

Human Rights First has been following ICE's detention reform efforts closely. This statement is based 
on research conducted for our October 201 1 report. "Jails and Jumpsuits: Transforming the U.S. 
Immigration Detention System - A Two-Year Review." as well as subsequent research.’ In the past 
two and a half years. Human Rights First staff toured 19 jails, prisons and detention facilities used by 
ICE for immigration detainees. In conducting our research and our ongoing work more broadly, we 
have also met with government officials, legal service providers, detained asylum seekers and 
immigrants, former detainees, and private and county staff and federal government officers who 
operate ICE's facilities. We have also reviewed existing government data, and consulted with present 
and former correctional officials and prison reform experts. Human Rights First i.s submitting tltc full 
October 201 1 report for the hearing record. 

Reforming the U.S. Immigration Detention System - Standards. Conditions and Legion.s 
Learned from Best Practices in the Penal Coirections System 

Contrary to the accusations of the ICE Union that reforms to the condition of immigration detention 
will undermine officer and detainee safety.* it is well-established among corrections experts that a 
"normalized environment" - one that replicates as much as possible life on the outside can help to 
ensure the safety and security of any detention facility. .Similarly, despite the assertion by House 
Judiciary Committee Chairman Lamar Smith (R-TX/2l"i that the Performance Based National 


* ‘'in IS. “Scaeliry Nafnilltiaiio A|)rvials l>oni Ssliniit as Special Ailvisor un ICli end IldmlHin & RcnKivnl" news lelcese {'cbniiu> -1. 
2tlD'A itvaiUhle ai luip://\kkku litivaov/vHews/itfLases/ni J 2.137772 I J sluirt 

* Dr. Di>ni Schnni, ItmaiKiwittn DeieMinh Ourvi€*i' omJ Rocommeodjition& rWAhhinjitotK IX lininijinitjon mhI Ciutonb l^nlorcetntMii. 
2009). 2*3. avnilahU: tu hitr>7/w»w,kc.L»t>v/ttiH.-lih/iihMH/ofrti:t?»/oJni>/tHif/i>.VHlcn:tHu>n-wt.iHtf .llicn.*tiniftct etted »* 20IW DllS/ll'n 
Report I 

"Id 

* I luiiiHJ) Ki jbli l-ini, tuid Jmnp«uil.H: Tmit(U>nniti$ (lie U.S Immigraiion Deteniioii Sy%Miu > A '[Vti- Y«4i Review, " (Ckiulier 

2f)l 1 1 . pj 24. MviiilJtbltf M hlliK//www.hmmuiiJi;ii>MiiU.»ti7wii-a3tncnt/iif>ls'jtlN/iMU/ltKI -Jmls .iJKt-JiunD>uuH-K-tH>ii itjf . [bctvioitfkr 
cited n<i iiib A Jumpkuihl 

* ICbrouncil IIHofthe Antcrtcai) l-'nlcraliuii of (jovummcni l^pUjyces. "ICB union vtiic of no cuundeiice." news relMAC, Jul> 2.^. 
20IU. 


3 






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Detention Standards (PONDS) of 20 1 1 'IgoJ beyond common sense to accommodate illegal 
immigrants and [treat] them belter than citizens in federal custody”' most of ICE’s proposed changes 
already exist in the corrections context, including in federal custody. Moreover, the 2011 PONDS, like 
the 2008 PENDS, are still based on American Correctional Association standards. Human Rights First 
continues to urge ICE to develop and implement standards to reflect the environment and conditions 
appropriate for civil immigration detention. 

A large proportion of ICE detainees are low risk or non-criminal, and only a small percentage have 
been convicted of violent crimes. A snapshot of ICE data reveals that on May 2. 201 1 of ICE’s 
detained population were non-criminals. 4 1 St were classified as Level 1 detainees (lowest risk) and 
just I99t were clas-sified as Level 3 detainees (highest risk).'" DHS and ICE have repeatedly 
indicated — since the 2009 reform announcemenis -that while the government planned to develop 
more appropriate detention models for civil immigration law detainees, higher-risk detainees would be 
subject to some additional restrictions. Through an effective and automated risk classification 
assessment tool — which is considered a best practice in the corrections context - ICE officers should 
he able to identify individuals who may pose a danger and house them in facilities or areas of facilities 
that provide additional restrictions or protections for staff and other detainees. ICE has stated. "The 
new system will provide safe and secure conditions of confinement based on the individual 
characteristics of a diverse population, including: threat to the community, risk of flight, type and 
status of immigration proceeding, community lies, medical and mental health issues.”" ICE has 
developed a risk classification assessment tool, which it is taking steps to automate. This tool should be 
implemented throughout the detention system and should be validated to ensure that it leads to 
appropriate outcomes, and its results should be audited regularly. 

Normalized linvironmeiUs within Detention Facilities' Positively Impact Safety 

Experts on criminal prison systems have confirmed that "normalized environments" within secure 
facilities -rather than highly "structured" jail-like environments — can actually positively impact 
facility safety. Corrections expert Steve J. Martin, who worked as a prison guard, probation and parole 
officer, and prosecutor in the "Texas prison system, and also served as the system’s General Counsel, 
told Human Rights First in an interview that "the extent that you can normalize the confinement setting 
is the extent to which you can have a safe environment.. . For a population detained under civil 
authority, as long as I have the outside security envelope [i.e. perimeter fencing and/or a secure 
facility], everything within that envelope is maximized to whatever the budget and the institutional 
management might permit."'* ** Rather than a frivolous luxury, programming for detainees is considered 
a best practice in the corrections context; it helps fill detainees’ time, which is otherwise mostly 
unoccupied, and thus contributes to a safer environment for detainees and officers alike." 

Some ICE officers seem to be concerned that facilities designed for civil immigration law detainees 
would be designed in such a way that would permit immigration detainees to "walk away" from the 
facility. However. ICE has not proposed an end to the use of facilities with secure perimeters, but 
rather a shift in the conditions within the detention facilities. In fact. ICE has emphasized that it seeks 
to develop "supers ised" facilities that are "safe and secure" and that "prevent unauthorized entry and 


* Sitilllr ISep.rrliU»in NtdnuiU a ilMspIliililv (juidvline (nr lllvxiil IminjilniilU. jnias whuwe. Miruury 28, 2012, iivwlablc dl 
[Iiur/Ziuaicimv lii'ii'g l■s^^^/llC»'vS122H3)l 2 IlliiJ. 

^ irtiU A JumpAUils at 2. 

** Id aJ H (oitny DHWK'h. "SUIemcni •*! p 

JaiK A Jutn)uuii> Ai 22 tciiiu| I luniaii KljshCi TUst immiiivk Mrith Sieve J Maitttt. April 1 , 201 1 ) 

•^lU. 


4 


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egress." The level of perimeler security necessary to prevent "walk-aways” must be distinguished from 
the level of facility security necessary to ensure the safety of detainees and officers. As Michele 
Deitch. criminal justice and juvenile justice policy espen at the University of Texa.s. told Human 
Rights First in an interview. "A secuie perimeter i.s for public safely purposes. Perimeter security 
should be distinguished from conditions inside a facility."'* 

Immigration detention facilities should not be modeled on correctional facilities, but they should 
certainly not be operated with mori' restrictions than corrections experts believe are optimal for 
correctional facilities. The American Bar Association's 2010 Criminal Justice .Standards on Treatment 
of Prisoners call for the adoption of contact visits, some privacy for detainees, and expanded outdoor 
recreation as "best practices" in both correctional and immigration detention facilities.” The impact of 
prison design and operations on safely has been the subject of many studies, particularly as prison and 
jail designs began to shift toward direct supervision models (away from a traditional "corridor” design) 
in the late 1960s and early 1970s with the goal of creating safer and more humane environments for 
inmates and officers. A central component (among others) of these direct-supervision models was “a 
normalized living environment, meaning that the interior of the facilities would have a less institutional 
feel to iL”"' 

Maximizing the choice and autonomy available to inmates was also important in the direct-supervision 
model. Multiple experts have argued that normalized conditions — such as some degree of free 
movement within the facility, some privacy, natural light, comfortable and non-institutional fumituie. 
tile or carpel flooring, and porcelain toilets (rather than stainless steel ) — can contribute to improved 
safety inside a facility.. The former warden of the Chicago Metropolitan Correctional Center, which 
was one of the first direct-supervision models, wrote. "(I]n essence, an environment designed to be 
indestructible evokes destructive behavior, while an environment designed for normal usage evokes 
normal behavior."” Reviewing a number of studies conducted in the course of two decades on direct- 
supervision jails with "normalized" environments, one researcher concluded. "This is not to say that 
the jail will be converted into a luxurious setting, but if architects and administrators work to develop a 
nomialized physical and social environment, the potential for reduction of inmate and officer stress, 
violence, and property damage exists.""' 

Prison wardens, corrections experts, and long-time corrections professionals interviewed by Human 
Rights First confirmed these observations linking normalized environments in detention to improved 
safety within a facility. Mr. Martin de.scribed the essential elements of a more normalized environment: 
maximum freedom of movement within the physical plant, outdoor space with dedicated area for 
sports or other activities (not just an empty yard enclosed by fencing), privacy in toilets and showers. 


Itl Ml 2.t tciijn; lltmtan Kiichts lira miurvivw »iiti Mliiisic lieiictt. Apr II l-S. 20) l.i 
*' la At 33 tsIUn; Amencun Umi Asnx-itill^m. "r'nullnA] Jauicv Stindiin).s on fit I'riwnars." inpprovoa liy Ok AU.A I louse nl 

Delcirnles in r-'chnury 3010). nvnilnblc m 

lino VM-nw nnk-ncantnn or ii/ioiMn-.iaoii> /enniiiinl iiiMice .m-li-m invIjurAniiiiust Uaiannls liinuiiK-nli- 11 -..rinsJiliiil.l. Ihnvinntlci 
eilea os .ADArnininia Jusilee SliiiK)jmls|. 

la (citijix A.H. BsMhinis. ‘'IntenieTsonii) Vnilenee ana Stxial Onler in ISuon." in CrlMoona JuitiLf A R^werth. voL 2A 

cds. M tonry A J. ISnerslIlB ( liniV). p. 243. n. 32: Olriiame Tiuliin). “WaU-sea tXiwir. Piulinl InipleiiieiiliUion of (In* Nesi tIcitenitioM Jnll 
PliUosopfay." PnwM RiMnntl. vol. tin. mi. 3 1 Scpiemtier 2ti0nj, p. snn.j 

” la ai .34 iiilinit W Rnyinona Nelson. "Ille t>nginsof (tie Populne tymsrl Supervision ('oncvpl: Ail liyewiltiess AcLsiunl.''AmrmiN 
lull, vul. 2. no I (ivxni, p 10; Al).is. “r*ltiuige.s in Pnsoii rucililies.'' CTbe prinmiy osstimplion iit u|ieiivSiii|helilna aveaiiecl 
supcrvisioii moaell wm Utni H nomiHli/ea envtisimtieni wouia evoke normal helinVHir.'i>. 

la (elliny I’arliini. -Waiefca IXiwn." p, 2Vl , See also Uolioms. "Inteipcfronnl Violence." p 205. ("I’nlmiicea physical resiricusins cmi 
often leauce levels of Violence due to restriclioos on opportunity hut may also .soinciiines lead lo a loss of legitintocy that cun escoiaie 
VHiIencc."lr. 


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Iniemei access, common day space for congregate activity, and programming. He added. "Within 
reasonable limitations. there'.s no reason not to pennil civilian clothing.””' 

A normalized detention environment con positively impact prison facilities holding higher-risk 
detainees as well a.s low-risk detainees. For example. McKean Federal Correctional Institution, a 
medium-security federal prison, was praised in the mid-1990s as "the best-managed prison in the 
country It housed more than I.OflO men. saw much less violence than was typical, and was 
significantly less expensive per inmate than the system-wide average. McKean offered "open” 
movement throughout the facility, generous recreation time, and a pleasant and comfortable physical 
environment.” The long-time warden. Dennis Luther, reported. "We do surveys every year, and they 
show that as inmates get more involved in the rec program, they get in le.ss trouble. Also, they tend to 
have less health double, and that saves money."^' 

Luther "insists that physical details (such as carpets, sofas, and plants] help to maintain order, just as 
the programs do.” One of Luther's primary principles is to "(n)ormalize the environment to the extern 
possible by providing programs, amenities, and services. The denial of such must be related to 
maintaining order and security rather than punishment. Most inmates will respond favorably to a clean 
and aesthetically pleasing physical environment and will not vandalize or destroy it.”^^ 

Medical experts have found that an immigration detainee's lack of control over details of his living 
environment — "from the clothes he wears; to the number of hours he sleeps; to the degree of light or 
darkness in his cell; to the food he eats; to the sounds he hears; to the amount and quality of the fresh 
air he breathes; to the degiee of physical activity or inactivity in which he engages; and the people with 
whom he communicates” — can exacerbate stress.^ Bolstering the corrections professionals’ 
recommendations that normalized detention environments promote safe facilities, such medical 
assessments suggest that a normalized environment can also be beneficial to the mental health of 
immigrant detainees.^' 


U. Human Rijsbu Kim wilJt Steve i. Mailiii. A|iril I » 201 1. .\liO. Jeiuine W«)«H]roiJ<rii(mcr Vi-arJen, SmtOueniin 

Stale PnMtn. fomtet Acting Seociv)' the ('altfomui OcpiBiment ot TonectionK and Rehahiiiiaiion) told Human Rijehtfi Firot. ‘‘The 
inure jrou give people in euyknly. the belief Ivlinvetl they ae. because (licy have iimvc In kt»e. . . Iltc ilcjucc of freeUum muvemeni 
grunted to inmates silKmM ua nunh uk pomlhle, btued on hehaviitt... Ullerte>« i» u imlMe pn»bk’ni " iMurcb 22. 201 h WiHrum Oilllnt 
(former iliirciur of the AnwrKon ('onvciMiial Aaiaiclation'iC'orTeclional Pro>et.i. former head of (.'drrcctiofls DtvKtoti of 
Waikbiiiglon Sime Attorney CiCiiBml'it Office, editor of Cnrrrrtktttai iMw Rtporter) -luggoteil. ‘*In a civil iletcnlkni facility, tietninee^i 
woukl pfCMimptivcIy be given a k*l vf r»p«'nsibility over ihetr mlemcliont uiilh each oilier ‘llllk wv'uld be premthcd on a pbiloM^liical 
hhift ** (Muvb lA. 201 1 Midicle Deiuh tcnniinul luiiicc und luvenilc juviicv policy expert. I Inivmiiy of IcitaA I.mw ScIhkiI und I.DJ 
Scbtrol of Public AfTuiratKUggesieii lliin civil iiiunigiaiioa «tetciiiMMi tnJgbi replicute condiikmv of uiisice cmnpv. wbicli penntl u bigh 
degree <>f fa'ctkitn of movetncni. but place liicin tniide n secure peiitncicr Site noted. "A secure perimetor U fur public oMfety putpotes 
Perimder Mcurily stH'uklbc Jiktinguished fnrm condillonv in«Kic a facility... rrimiiml bHU»ryoI'dc(uinccs should ni>( alTcci the 
conditikMis ribide tlic facility: It could he u risk faclur, but far tnore deiemtmatise of custody cluuincuiiun wituki be the person's 
inuiiuiional butiavior.*' (April 15, 201 1 )|, 

^ Id. felling Robert Worth. “A MikIcI Prison.*' TV Ailaniic Mnnthh. Nuvemhet l‘Ki5, itvmlabie ul 

liUp'/AfcW-w,ibciitl»nlk'.com^pwl/<h*cs/iwrekA*5nt*v/pris*ms(pr»«Tns.blm; and T'.hW R llcili. Oenrge f Cn|e, ami MichncI f), Rcoig. 
AmrnruH CoffwWiwii (Independence: Wndskiirlii IHihlriJling. 2005i, p. 352-5.1 > 

Id. 

”w. 

** Id at 35 (Citing Phyvreiunk bn IliimMit Kighl>. Putufhtifrin BeJ*>rr Jtinirr: ItHiefiHHr tktattion in iltr (fS (Wuilnnglun. DC 
Physicians for I iunitii Rigbls. 201 1 ), p. 1 4, available lU liUo<./M tun»i/onuw.% ami/lMIR ReninLi/u>dcfitiHcHk?temkm-imie20l 1 ikII . /. 

Id. 


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Federal Bureau of Prixoiis Facililies Allow Creater Freedom of Movement than Most 

Immigration Detention Facilities 

More significant freedom of movement is actually permitted, to varying degrees, in federal 
correctional facililies across the country, including in all 6 Federal Bureau of Prisons minimum- 
security institutions, known as Federal Prison Camps (FPCs) and in all 29 Federal Bureau of Prisons 
low-security institutions, known as Federal Correctional lnstilulion.s (FCIs). In each of these facilities, 
which together house over 8().(K)0 federal prisoners, inmates can generally exit and enter their housing 
area without an escort, walking to and from their job sites, the cafeteria, the indoor and outdoor 
recreation areas, the visitation room, the doctor, and the library. Although corrections facililies should 
not serve as models for the immigration detention system, the facts that many federal Bureau of 
Prisons facilities allow greater freedom of movement than most immigration detention facilities and 
that prison experts confirm the need for maximum freedom of movement strongly suggest that most 
civil immigration law detainees should be permitted greater mobility within secure facilities than they 
presently receive.*’ 

All Federal Bureau of Prisons Facilities Allow Contact Visitation 

Contact visits — during which inmates can hold hands with their family members, and embrace at the 
beginning and end of the visit - are permitted in jails and prisons across the country, including in the 
prison systems of all 50 slates and in all federal Bureau of Prisons facilities.*" 

By conmast. only ten ICE-authorized facilities, out of 254. regularly permit contact visitation. Some 
others permit contact visitation under special circumstances, but not on a regular basis. Visitors and 
detainees— many who have lived in the United States for many years, and have families and extended 
communities here, as well as others who have fled brutal persecution in their homelands and were 
locked up upon arrival in the United States — instead must sit on either side of a Plexiglas window and 
speak via telephone. In several facilities, "visits” take place only via video, even when visitors are in 
the same building as detainees.^ At some immigration detention facilities, visitation hours arc 


Ul. at -ts tcilina I’ftleinl Uutr su vt I'muas ilMly fwilily populslkin (Irta avNilaSk ttt lum://\sww.tsn>.L’ov/lo^-iim'tLVwceSlv rcw»il.i..p 
MnU l(i<> numbvr incl(Hk> d^iily [K'puluiiiii of FC'ln. nmi low-wcurily M(clli(c«;iim|'> «• of^pVM l Ttw flH%incliKic 
Aldcnon (Wist Virgmiai. Bryvn (Tcinuk iXiluth (MinncM>ia|. Mutiigi^mery i AlaKmna). Fenvitcola (FlurKtAj, aoJ Vitukitm (South 
nnkoiauiiil thcFCb irKiuJc AIIckwcmhI Low iPcntuiylvnnu). naMmp(Tcxiki>). Beaunumi U>w(Tcxiiii),rokmiin U>w (ThiriUii). 
Dunhury (CoimectiLtK). {iuglewiiMi (Cobxikhft. LoiiipvictCalifotniaK Onkilalc (lAnj'tsiaaaK Pdcruliuti: Low (Vtreinlii). SiillntU 
(An>ona), «nd TexiiHianu lTuxu») 

^ Id M .^Sfctling 40 Rules ot City ol New Yini. i I 4N(g)(U. which tiiite. "Phy’sicid contuci »boll he iwmiitied between every prbi«>nei 
iiiui Nil of iii» or her vivltots Ihmughoul Um; visiting pciiixl. mcludlng holding IinihIx. iKilJitti yiMiiig cliitdien. iind ktumg.” Section 1 4N 
(0 iMX'Vidcv that bclore and nflct a visit. pri«*ncr» "ntay l*e searched sokly (i* en»Mie that they n*» contnihond ** N Y , Comp. 

f\<dc> R A Regs J 7008,6 (’'iatPhyvicAl conloci nhwll hcpcrmiiied hctwven r priwwr mut hu visitors''). N Y, Comp, Ciidw R A 
Keys ( 7008.3 (“(h) The visiting lUev Kbiill lie de.sigDcd so ns to ullow physical cuniRCi between priumeis and tbelr vifilonv.’*! Ilie 
stHndard pruvidcK Ihni hefoa* and after a vlxH. pritconeix. “prtDr and subsequeni u> each vixil. inuy he .scnrcticd solely to enutre Ihm they 
possess fKic(intnU<anO.’’V N,Y. Comp. Codes R. A Regs. $ 7(X)8.7; As of August .^1. 201 1; detailed research on nie with lluiniin Rights 
i'irst, I'ediTOl Bureau «if Prisons Ihogiam flldtcmeni 5367.08. "Visiimg kegulutsiins,*’ | 18 (‘*PRf)Cnr>URHS §540J). Il (2) Stuff sliul) 
permit limited physiciit conioct, «ucb as Itondduilcing. embracing, and klutng, between on inmate and a visitor, unless tbeie is cteui and 
coiiviiKitig cvidetK'C ihul such coiilact would jei>])udue the safety m sccurtly of tlw insUiuiioti Where onitact visiting u provided, 
hiindslbdting. embracing, and kissing are ordinanly permitted within the hounds o| gmid taste nnd only at llio beginning arxl at Uie end of 
the visit")). 

'’‘I'bU 1ft die piuciice at l>tuglM Couniy Coriectionft ( 1 37 dciHinecs). liNker (’uuniy .Sherill Depiirimeni (150 (kiaineeii). Liow.ib County 
jail (.l4Vdetiiince)ii. Kumscy Couniy Aduli l>eienli<in Center IMdelatnccst McMemy County Conectional l aciliiy (3 IS detainees). 
Sherburne ('ouniy jailtl ISdelniiKvsi. l‘n:eborn('ounly jail (7Sdcliuncet), and Jock Harwell Detention Lorilily tlOO) Humun Rights 
First iniers’iews with local service pritvidciv. August 3010. March 201 1. and Se|iiemher 301 1. 

hilp7Avww .bokcrur comAoTTecllunN/mmaicdnfo. and liuti;V/www.ceciml com^taciliucb »1 tx 017.1iiinl II ts also the pmclicc at Fimil 

7 



169 


severely limited. Current ICE standards - including the PBNDS 201 1 -leave it up to the facility 
administrator or officer in charge to decide whether to permit contact visits. 

At a conference at Georgetown Law School in October 2011. Sister Josephe Marie Flynn, a memlier of 
the Sisters of Notre Dame and author of Resruing Rtgimi: Thf Ruitk lo Save a friend from 
neporiiiiion and Deadi, described an Easier Sunday visit in 2005 to the Kenosha County Jail in 
Wisconsin, where Sister Josephe joined the husband and two young children of Regina Bakala. a 
Congolese survivor of rape and torture. Ms. Bakala was held at Kenosha County Jail while fighting her 
asylum case. 

Regina hik allowed four risiiorx on fM.iier Sunday. She listed David. I.ydia. Christopher, and 
me. After going through metal detectors, ive stood alone in the empty visitors ' room, narrow 
counters on opposite side.s. each with a thick RIe.xiglas harrier fmm counter to ceiling. Snutll 
IHitiels partitioned off / / visiting .stations, HV waited. I'inally, a steel door on the pri.soner's 
side opened. She was in prison orange from the neck down. Seeing David and the children, 
she threw up her hands, her face contorted in agony. We could hear her walling through the 
soundpnmf glass, and she grahlied the narrow counter nearest David. He yelped then plunged 
toward her, sobbing us he grabbed the counter on our side. I'he children and I sttutd hack, 
.stunned. Grailually. she pulled herself to the nearest stord. her eyes streanung. open mouth 
turned down, quivering. She leaned toward the glass, her arms trying lo scoop her children 
rinser. Gradually, Christopher begun to talk, hut I.ydia said only. "HV want you to come home 
now . " During the whole visit, .she huddled dose to her Daddy and then to me. never taking her 
eyes off her mother. 

Months later, when ive miraculously succeeded in getting Regina 's case reopened, a reporter 
squatted down to ask Christopher how he felt now that he knew his Mommy would he coming 
home, rhe little guy did not .smile, lasiead. he punched the air in front of him, saying, “I'm 
going to break the mirror . " I.ydia translated. "He wants to break the mirror, the big gla.ss 
between him and Mommy. " On Mother's Day, Christopher had not been allowed to give 
Mommy the dandelion he picked for her. He had to leave the little flower on the ledge In front 
of the thick Ple.xiglits.'" 

Contact visits for immigration detainees would mean that they could embrace their family and friends 
in greeting and goodbye, and sit side by side while they visit. Loved ones could hold hands. Detained 
fathers and mothers would be able to touch their babies. Children would be able lo hug their detained 
parents. Corrections experts have affirmed the value of contact visits for incarcerated individuals. The 
American Bar Association’s Criminal Justice Standards on Treatment of Prisoners also provide for 
"contact visits between prisoners and their visitors." and "adequate" visiting time.*’ Dr. Schriro 


('oimiy JniI ( AriAma), which bokLs iiane Uinn 4(K>ik:iaiiwtis daily Al Pinal ruuniy. Jetainocs are tetdrKictl to luinii vhIco b> meet not 
only with vmlio; family and friends, hut bIm) wilii their attorneys. ACLI I of ArUono. In Their thk'ii Witrch. 

^ .See iramcript of ReafftTmni}! Prk^iccinin: Siren^iiicnmii Asylum iu the I Inited Sutev f 'unfcKitce rommemitnitin^ the nOtii 
Anniversary of the i<:ISl Rd'ufice Convention, hostcii hy the U N. High (\nnrnt»ii>iier tor Refugees. Iluinun Kighu F'lrU aiHl 
(icurgcufwn I jiw Schoul. Tucstlay. Octolict 2.^ 201 1 . (>i (He with I luiiniu Rights Fint. 

^ fails A Jumpsuits « 38 tciling AHA Criminai Justice Siamlards, Standard 2.)4.5. which states. “Visiting peniHls slmuld he of laleiitiaie 
length Visits with sounwl and clergy sIhuiUI tint he counted as visiting time, and ordinunly slUiuM Iv unlimited hi fnNiucncy Pretrial 
detainees should he allowed visiting opponimiiies heytind tht>sc alTorded convicted prUonerH, subject only In ruiKonahie imtituiliinal 
rcslrictionii and physical plant consitainu I'ur prisoners wboae cunnnement calends momihun |.U)djiys|.cs>nectHMuil auduoiiics shoukl 
iilluw contact visits heiwecn priwncrv and Ihcir visitors, especially minor childnm. ahseni an inslividualiA'd dctefTnmalum lhat a csmtosl 
visit bciweeii a pafikular prisoner ai»d a piuticular visitor poses a dimgei u» a criminal investigation or U’ial. UisiiiuiionAl securiiy. or the 
h»leiy of any peraon 


8 




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recommended that family vii^itation be improved by. among other things, increasing the hours and 
providing ‘appropriate space.”’" The Vera Commission on Safety and Abuse in America's Prisons, a 
national bipanisan commission created by Congress to e.xamine violence in the U.S. prison and jail 
systems and make recommendations to improve safely for prisoners, staff, and the public, stated in its 
2(XX) report. "Because contact visits can inspire good behavior, people confined in both prisons and 
jails should be allowed to touch and embrace their children, partners, and other friends and family. 
Physical barriers and telephones should be resen ed for those who have abused visitation privileges or 
otherwise have been determined to pose too great a risk.”’' 

.Some wardens and ICE assistant field officers have e,spressed concern that permitting contact visits 
would make a facility vulnerable to contraband passed between visitor and detainee, and that they 
would have to institute strip searches for detainees who had contact visits. However. Martin Horn, who 
ran the corrections systems in Pennsylvania and New York City and currently .serves as Distinguished 
Lecturer at the John Jay College for Criminal Justice, .md Jeanne Woodford, former Secretary of the 
California Oepanmeni of Corrections and former warden of .San Quentin Slate Prison, both 
emphasized that strip searches following contact visits should lake place only in cases of "reasonable 
cause or suspicion” or “high risk inmates." They noted that screening technology can help decrease the 
use of actual strip searches.” 

Curreclions fixperls Assert Open-Hay Shower Areas -Which Hxist in Most ICH-Authorized 

Facilities — are “Absolutely Inappropriate" 

Many ICE-authorized facilities afford no privacy whatsoever to detainees taking showers or using the 
toilet. Yet according to an official who previously served with the Texas Department of Corrections, 
privacy in showers and toilets is available in “huge number of penal jails and prisons." "Gane 
showers” — open-bay shower areas with many showerheads — are "absolutely inappropriate."’’ 

Some immigration detention facility administrators have cited safely concerns to justify the utter 
absence of privacy, but in fact many ICE and non-ICE facilities afford detainees the ba.sic dignity of 
visual privacy in toilets and showers, without incident. Mr. Horn said that partial barriers, from knee 
to neck, can be used to reduce the risk of suicides or sexual assault. Another longtime corrections 
expert told Human Rights First that "privacy screens can be used that allow staff to .see at least heads 
and/or feet in shower and/or toilet areas while still providing some level of privacy."'* 

Security concerns should not require that showers and toilets be completely open to staff observation, 
which implicitly means observation by other detainees as well. At Essex County jail, which holds 
hundreds of ICE detainees with criminal histories, toilet stalls have full-length doors, and showers have 
tear away curtains (designed to prevent self-strangulationj. The jail warden says that the facility has 
never had problems with this set-up. and that shower curtains are commonly used in criminal facilities. 
The ABA Criminal Justice Standards call for "reasonably private" toilets for prisoners. 


“Id u:iUiixIlXWIlll.'iariiRc|«.rl.p M l 

Id lolinz ttw C'ymmissSrti un .Safely attJ ASuse lit Amerlea's priwmi. Cittffrniiitng CiwpfirMoii. (New Yeric Vcni Insiiiuieiif 
lusllcc. :i<IAI. r. .ts. availaSle ul blll»;//<»'»a.nil ~'is.-,.illiiiis'n.il.mj/ndl><‘inlltiiiume CiiiiriilL'ilieiil.ndri 
Id. (citini 1 lutium Rtpbi* lint coitcjtpunikmx* wilii Murtin I loin. Mitidi 22, 201 1 ttnU intorview w lih Jeanne WiKYdford. Muni) 22. 
20IIK 

111. At .10 (citinf! lluiMD Kigbu I'irsi Interview wiib Sieve J Martin. AfYnl I, 20| I j 
^ Id ictlingllutnaii Rijibte I'tnl atmMpDndence with Martin I tom. Mnreh 22. 201 !•). 

9 



171 


“Sheriff's (iuide U> Effective Jail Operations'' Outlines Benefits of Outdoor and Indoor 

Exercise for Operational Manapcment and Safety 

At preseni. many facilities where immigrants are detained have no outdoor recreation space, or the 
space considered "outdoor” is in fact interior to the facility, enclosed by high cement walls and a cage- 
like ceiling through which some light and air can enter. In other ICE facilities, the outdoor recreation 
urea may be outdoors, but it is otherwise deficient — lacking shade or grass in extremely hot and sunny 
climates, or. in the ca.se of Delaney flail in Newark, plagued by poor air quality from neighboring 
industrial plants. The current detention standards permit ICE to hold detainees in facilities without 
outdoor recreation “in exceptional circumstances.” Where outdoor recreation exists, the requirements 
state that detainees must have access to it for just one hour per day. five days per week— very little 
lime for detained individuals with limited activities with which to fill their days. Tire PBNDS 201 1. 
which have yet to be implemented, require outdoor recreation for just one hour per day. seven days per 
week. 

Corrections professionals and ICE facility administrators have also acknowledged the benefits of 
outdoor recreation. The Sheriff's Guide to Effective Jail Operations, published by the National Institute 
of Corrections, states: "In addition to being beneficial for inmate health, the availability of outdoor and 
indoor exerci.se may result in fewer operational problems such as inmate-on-inmate assaults, inmate 
assaults on staff, damage to Jail property, and lawsuits."’' The former warden of a medium-security 
federal prison said in an interview. “We do surveys every year, and they show that as inmates gel more 
involved in the [ouldoorl rec program, they get in less trouble."’'' One ICE assistant field office 
director told Human Rights First that the better the recreation i.s. “the more likely they'll leave you 
alone.’*” A former prison official told us that outdoor recreation areas should have dedicated spaces for 
sports and other activities, rather than being Just barren yards enclosed by fencing. The ABA’s 
Criminal Justice Standards on Treatment of Prisoners provide that. "To the extent practicable and 
consistent with prisoner and staff safety, cotrectional authorities should minimize the periods during 
the day in which prisoners are required to remain in their cells. Correctional authorities should provide 
all prisoners daily opportunities for significant out-of-cell lime and for recreation at appropriate hours 
that allows them to maintain physical health and. for prisoners not in segregated housing, to socialize 
with other prisoners.”’* 

I'rogramming and Activities Help to Ensure Safely Inside a Detention Eacilily 

According to corrections professionals, programming for incarcerated individuals helps to ensure 
safety inside a detention facility. The Sheriff's Guide to Effective Jail Operations states. “Productive 
activities provide a powerful incentive for inmates to maintain positive behavior.... If ajail does not 
provide inmates with productive activities, they will find other ways to fill their time, often through 
activities that are destructive and contrary to the Jail's mission of providing a safe and secure 
environment.””' The Vera Commission's 2006 report stated that “few conditions compromise safely 
more than idleness.”*® 


]U. kitinii Murk I). Mstliti oiul Mmu) KtU^iimpcK. ShcrtjS'x Guide it* lifferu\r Jnd OprnMtnn IX** NiUmmiwI imiiluie of 

CofTcclinn*. I I.S IX'poftmcntor JitNdctf. 2filT7>. p 4ft.;, Ilwwtnnller ciUrU Sb«hfr«(JuHlc.|. 
lil felling Rohcrl Wurlh. "A RriMI." The Adamir Mmlhty. N‘'V«nil»cr 1W5. MVailuHc «•! 

L.ii n/njyt/tkvi/i5» uc^Ay.5iufv/nfmjiiVniiMi»AJimi.l 

^ lU Ml4()iciiing liutnan Ki.d>i« fimt lour4>l'l^»t( IsAbel Dcteiiiioii Cenki. fXiciwtha ft. 20IU.) 

^ kl (cuing ADA. ‘'Criminai Ju’> 1 ice SiMxJaxxlv'' SUmluiU 23<3.ft ) 

** Id (citing Sberiff^ («uide *t 41 j. 

^ Id telling Commukuon on SAfvty and AbuM; in Amcncn'ji C0i\froMm% iSonfiuemeM. f>. 1 2.t 

10 


172 


Phone service in detention facilities is unreliable, extremely expensive, and appears to have improved 
only marginally despite ongoing concerns at the Government Accountability Office and the OHS 
Office of the Inspector General.^' Given that email communication has become a primary form of 
communication for people all over the world, it would make sense for ICE facilities to provide email 
access to its detainees. All facilities operated by the federal Bureau of Prisons have an email system 
that is available to inmates at all security levels. Known as TRULINCS. this system permits inmates to 
send emails to and receive emails from a preapproved list of contacts. Mr. Martin, the former General 
Counsel of the Texas prison system, contended that immigration detainees should have access to the 
Internet as well as email. He said. ‘The risk is minimal with proper controls, and the benefits would be 
enormous in facilitating communication with family and attorneys." ICE currently provides email 
access in just three facilities. 


CONCmSION AND RECOMMENDATIONS 

Contrary to as,sertions by Chairman Smith that ICE’s detention reform efforts "[go) beyond common 
sense'"* or allegations by the ICE Union’s Council 1 18 President. Chris Crane, that ICE’s detention 
reforms are "aimed at providing resort like living conditions to criminal aliens.'"*'* many of the reforms 
ICE is contemplating actually exist in the corrections context and are well-understorxl to improve 
facility safety and humane treatment for many prison populations. Hiey represent steps toward reform 
that are considered "best practices" in managing and designing any system that detains individuals, 
whether for correctional or immigration purposes. Immigration detention facilities should not be 
modeled on correctional facilities, but they should certainly not be operated with more restrictions than 
corrections experts believe correctional facilities should have or than experts believe are necessary for 
the safe management of the facilities. 

While ICE has taken some steps to address some of the deliciendes in the immigration detention 
system, much more needs to be done to improve conditions and to address challenges in the system 
broadly, including the lack of Individualized assessments and independent review of the need to detain. 


Id JaiiUiify 3010, ibe DllS Ofl'icc uf ibc Inspector (feneral raitiMi ixmoenu ihirui K't's hick of over^ifibior Ibi* fin-diu;ial il« 

icicphune Kcrvicc contnwti. makinj! il eiwy for ikM.uncci> lo be overcbiirfiHl for cniia. <OMK— OfTice of inspector Cicnenil. Immigramn 
amiCusums Enfonemevt Mattaiiemrnt Omtmh ant Detahtre Tclirpiumr Stnicts (Waahiii|)k'n. IX!’ l'>liS.2UJO).OU^Uk3b. p. 6. 
uvulluKle Mt Imp /ywww Ulis >!(■ lo .^<< Jniilupdt . In 20i», the t)l IS l>|f» Hleniifietl pnibleffi» with ekisittij; 

telephtme S42n'ices inchkiinf lack iiK'cniive for the ci>rHrNek>r lu tmpnwc pertorniMnee, MjsntlicAiit conneciieiiy aikI lock ol 
i»vcruphl of filler mid eutUnictoi pixinih <1)1 IS — Office of Intpeckn Oenenil. Rtuew itf htmigrutim mui Vutunm Fj\foivtmtm Oetam-v 
TeitpHiHtr Setytctu CVwrrwt <W«slimf<on. DC'. IXIS, 20IH). p 3‘4, avuiluhle lU 

htipt/Mww iUb.gMV/v«t|/«s.M;l&/niir{fi(rrlh/OUL*)l* pUf In 2007, lltc (nivemmeiK Acvountithihiy Office hmiHl 

pr»»hlein.«" with the «y%tein liui t'ice calh to couikulmeir. pio Ihxio legal iervtce pravUler*. iiongoN-eninviiiul Hfguiii/Atwink and ilie 
1)1 IS OfTice ol llie lnc|tet’(oi Genentl. iukI noicil thoi “ICT.'s tack of iiwiircne»s and insuflktenl miemMl controU nppev to have 
pcrpciualcd lelephnnc !»><rtem piv’hleiits for »everal yeni* " (Cfovemnwnt Aiwunlnhililj’ Office. Tekphow Aant Fntbtcm H'r rr 
Reryafixr al fieletititut FacHntent Olkcr liefktencks Dui Nnt iftaw 0 FaUrm ttf Sfttv*mpfnau-e (Wa-^liillgtifn. IX': CiAO, 2007), ttAfK 
07-875, p. 10. avmUhJe ui htiPL/fwww eik> j*t>vA)c» .noinVd<>7S75 tnll 

Jnils Ik. JujnptiuUk at 40 Idling. "IXI II.INCS I Ag. " tlureau uf Prisoim. itHKliriCil Odtvber 4. 201 1. ncceMvCtl Ochfbei 4. 201 1 . 
hilP'/Axww h..i- :;..\/iHPiirfe rtn^nniVimlincb lmnM« . cxplmning lliM emails sent vwTRUI.fNCJl arc subject hi mimttonng. even ih<« 
eniiiih between on itnnale <ind his aliuniey — unlike USPS-ileliscred airrespundcncv between nil inmate and his aiitimey *I1te cirtis iif the 
Kysiein lire cosvrad by ciKniniMury and phom! duirgei. plua a chai^' of 5 cents pet inimite for the service Itbcll; 3 ( Inman Righis h'lrM 
inlerview wiUi ICH nuauint fickl nlTice director. Ikcetnhcr K. 2010 1 Ic saul dial he wiHitd iHinnil male iletauices tlie Mune nccc»s (1 iiiitii 
lK»uhe» wumen iinly); Human Rights hiM inlervtvM with Mest J. Marlin. Apnl I. 201 l.l. 

Sec supra note 9 
**Sce laipra note 8 


1 ) 




173 


insufficient use of aliemaiives to detention, and major chatlenges immigrants in detention face 
accessing legal counsel. Human Rights First continues to emphasir.e the following recommendations: 

• Slop li.sing Prisons, .lails, and Jail-likc Facilities, and When Detention Is Necessary I'se 
Facilities with Conditions Appropriate for Civil Immigration Law Detainees. ICE should 
end the use of prisons, jails, and jail-like facilities to hold detainees. After an individualized 
assessment of the need to detain. ICE should use facilities that provide a more appropriate 
normalized environment. Detainees should be permitted to wear their own clothing, move 
freely among various areas within a secure facility , access true outdoor recreation for e.stended 
periods of time, access programming and email, have some privacy in toilets and showers, and 
have contact visits with family and friends. ICE should develop and implement new standards 
not modeled on corrections standards to specify conditions appropriate for civil immigration 
detention. 

• Prevent L'nnccessary Costs by Ensuring that Asylum Seekers and Other Immigrants Are 
Not Detained Unnecessarily. ICE should create an effective nationwide system of Alternatives 
to Detention for those who cannot be released without additional supervision, and Congress 
should ensure that cost savings are realized in the program’s expansion by reallocating part of 
the enforcement and removal budget to an increase in the ATD budget. Congress should enact 
legislation to provide arriving a.sylum seekers and other immigration detainees with the chance 
to have their custody reviewed in a hearing before an immigration coun. Congress should 
revi.se laws .so that an asylum seeker or other immigrant may be detained only after an 
assessment of the need for detention in his or her individual ca.se. rather than through automatic 
or mandatory detention, 

• Improve Access to Legal .Assistance and Fair Procedures. Congress should ensure that 
detained asylum seekers and other immigration detainees have sufficient access to legal 
representation, legal information, and in-person hearings of their asylum claims .-uid deportation 
cases, including by ending the use of facilities in remote locations that undermine access to 
legal representation, medical care, and family: ensuring that Legal Orientation Presentations are 
funded and in place at all facilities detaining asylum seekers and other immigration detainees; 
and ensuring that in-person Immigration Judges and Asylum Officers are available for all 
detained asylum seekers or other immigration detainees. 


12 



174 



Lutheran Immigration 
and Refugee Service 


LIRS Staicmcnt for Hearing: “The U.S. Department of Homeland Sccurit>'*s 
New Immigration Detention Standards'^ 

House Judiciary Subcommittee on Immigration Policy and Enforcement 

March 28, 2012 

BALTIMORE, March 28, 2012 never ihaughr the L'mtcd Sf.irc« would |Xit me tn (ail nt'tir I 
tied my eviintr) lu 5jvc my life. How can inyone think wc'rt cnt'tymg tiuraclTcs?” 4»ked Dclmrah', 
who escaped fnim Ciivuu ajid who was ifnmcdi.kieiy ilcr-.imcd up«.in her amvol to the I'ntred Sh«tc.v 
by the l>cpiirTmeiit of HomckmU Secunt)’!t (01 IS) Imtnigntion ajkI Lusiorm En»orcetm*nf (ICli). 
Uefi ire an »mmiJ5ranr'n ludge gr.mti'd her with iisyKim. ICE rransfeTTvd her to tha-e dtli'ercnt 
defennon centers in N'ew Jersey and denied lurr medical requests m treat her rheunubsm and ficnl 
bums. "People on tite outside fusr don't kmw wh.ir it's like," s;ud Otb<jnh. 

Lutheran Immigniliiin and Refu^^e Smicc (MRS), the nannnal <>qi:anuan<in established by 
laitheran churclirs in the L'nited Srates to ser\'e upnxttcd people, ts deeply troubled l>y the overuse 
of dcimuon .ind calls on Longress and the Adminisrrarion to use immigrAttim detention rnily when 
necessary - only when .in individual poses a nsk ijt tli^ir tir a ihrcat to the ommunit) - and h» 
expand more cost'Vffccnve .drrmam’cs to dea-ntion programs, for indivitluals who mtisr Iw held m 
custody, ICU needs to have a set of enforceable Ktaiulards that emutrs safety, digninr. and fairness. 

List month ICfi released its 2b 1 1 Pcrformancc-Hascd National Dcicnnon Standards (PHN*OS). The 
2tM I standards arc a positive step ?* wards improving b;tsic detention conditw»ns. They prnvKle 
impn wid mcvhcal standards, grciter prntecnons against socual iissault, increased access to families 
and legal represenranves, among r>ihcr changes. I lowevcr, they are lUir enf(jrce.il>tc and will imi 
apply to m'Xfit ICIi laiU usid to house dct.unces. 

Slime memUfs of Congress luve suggested flvit these stjuidards rtpresent a "huhday" for detaincr.>. 
'11u‘ 2bl 1 PBNDS, like rlie 2(MKt and 2lK)K st.indanjs. are inap|wopn.nrely Ixued on the correctional 
mixlels used for criminal pnpukmrms, ’* \ny set of detention standards that includes previsions for 
shaddir^ pregnant w omen u no ‘holiday,'" said Leslie £, V'clc^, LIRS Director frir Access tojusace. 
“L'sing a nrstnctivc, correctional framework is unacceptable for anyf»ne held for civil nolitions who 
docs not pose M threat." 

UU*. updated us naitoiul detention 4l:iiidanU Ikciusc it ackitiwlcdgcd riie need to provide Ivctter 
care tu the go wing numlxt of detainees in its vast network ol‘ pnvaiely run kuls. federal prisoiu, and 
eVKinty facilities. Prom fisiMl year (1^1 2b0b- 2t)IO, the numiKT of immigrants di't.uncd annually 
gnw from lh7,(NK) to over 363,000. Many of the nonciiuens held in detention arc refugees, asylum 
seekers, and turvivon of torture or human trafficking. 


^ Nimc hn l>mi cbmitnl lu proiN.! the w'«mut’i tJrnnn . 


Nttional HMdqwartMfv 700 l<gtir Sueec. Bitunew, MaiyUnd J 1430 * aio jyo-4700' Ick 

Advouey Offtc*: iraCSirMiNW Suite WVsstnigtoir DC aoooi • 702 >783 7509 ‘ ^ 404 783-7504 


LIRS.org 



175 


Stncc 2U03 K'Iv'h iiu(lci{iutc tncilicol c.irc contnbutcd t<> rh« cl&iHix of more rtiun PN) immiKTUits in 
cxisnxly.’ More fh.in IHb iu»tuAl abuM: compLiint!i have been reported in ICIC dctvnti>)n centers since 
2007.* Media ri'p'TW revealul rKif IC1% MificuU med to bide the dctatl« of' H k* frastre.irmer»! of 
immigrantHi dcratnees.* Son-profit org;inu.inons .ind Faith ;md commiiniry Iddcn .ibn spoke out in 
the need For reform. 

In 2IK>7 MRS and the WoiTwn's Krtugec O^mmission released Up I 4 /wrr: Tf>t 

DtitHiioit ttf Immi^wil VtumSa, x n.*p('rt winch investig^itcd the ].iilin(; of tmml^^.lnt Families in the 
t>>n lluito Rcsulenti;U rrearmeni (Renter in Taykir, 'I'X and the Reds O^unty Shelicr Core I'oCiUty 
III I a'e«]'H >rf, P Ir doaimcntcd disnirbin|> iiwidc^n nf ICI*. tailing to meet the biiKic needs of 
iinmtgpnn m its custtnly: 

V uomin asked For medicti attention because lier child v.'is suffering fkmi repeated vominng. 
’llie stitT suid that they would need to see Hie vomit tu lieliei'c that her son was sick. 

mtirficr submitted a reejuesft frir her son tn see a dentist because he had a morhachc. \frcT 
waning three weeks for an appointment, thedennsr pulled his rotten rrwith wnrh no orusthesu. 

>\ |>regpanr Nv^onian dki not receive her Finr prenatal exam until site W4.s sci’cn montlis pregnant. 
\nctrher pnrgnant w • min recounted riiiit she w'as gn-cn an N*Ra) h • screen For 'FB without a 
lead protective cover even though she told the technician that she was five mioiihs pregoanr. 

bmm 2007 tn 2008, the immigration task force tif tlir I'.iMiigelical laithcnm Cluirch in .\mcnci's 
Confcmicc of Bishops visited immigration detention facilities tn Michigan. New Jersey. Vtigmia, 
and Washington.* 'Ihc bishops were dismayed at what rhey heard and 1 >bser\’ed, expressed gcas’c 
concerns rcgirding dctuuiccs' access to medicil care along with the number of dcstths m dercniion, 
and urged Dl IS and Ojngrcss tn rclhrm the immigrahon detenoon system. 

In Ai^ust 200*>. m a'spon.He m the colls for reform, i^M.S Secretory Janet Nopolironu and KU'. 
\ssfstant .Seervniry John Morton announced plans in overhaul the ICK immigration dvtemi«jn 
system.' Utter in 2tKI*) l)r. Dora Schriro, Dl IS’s .Special \ilvuor on Immigration •uid Custrtms 
Hnfnrcemcnt and Detention 8r Removal, released a comprehensive repeat which cited rite need ti> 
impmvc conditions in immigration dctenm»n Facilities .ind recomiiKnd increased overaifdtt 'of the 


: Sixth /ragriM/ » Ok Smt (hntMr. Pos New» Utino. hifp:;/laiiHftYaMie*a,^oBi/lanni7/ncttf<./2lil^/iiVlV./mct>Liii 
iiiiiiMPinri\nsdiimg\ug»tti«t-ikUiiict-ta.dK-aintratiibcj {M«r. ti.JilT), 

* nW Folcr, fhe I hiflTiignifi 

wp.ft ■■ lo?aa VJiatil /< kt ?1. 

* .Nina Bcflumn. O/Au/ / UJ ttinh oflmikifMt Aw /al4 llic \ew York 1 ime*. 

iittp Mytm>r^Ciwn/^H!.'IJL/lM/io;ltalrOm i.Hiil>rrfs»»rii>h-U.I«^lU (|«a V. 

* laiihmul and Rcfu[|cr ScrvHc and ihc SVumrn'* Rehift^ (.fiuiminnoo. / Jt-Ang; { p l-tmih Tir 

fjetiBo, http-iiwTiTtJu?iin»y att/>.t/. »7BA9L)miAji: ailt5-4Cfi3 .IPOL. 

!2lUil*JVA2lli,A' knal aJ itaih \ iliir: 3 PiIj»iif (Prb. TitiT). 

* F;lX>l fUthtfi* I 'mt Dmmmn Caivm, t’ltC.X News .Semcc. hup: / / ■dcA.-_itv/ \\Tk>- Hurt 

li.HrhMmtra /lim 10, 

' tCR rimmmm i» tkt \mm ffn i t mw S_ptm, 

http /nr<.x;tflr<w*/l>‘AJft/OW>»»f«i..J.tn.«iim him { All)'. It. 3lK)9) 


176 


sv'strin.* Uu; report .ilso itckniAviccl^'d tlur Kil . U5ed i.iil-Ukc cnmitul mc.trccRiti<Mt um> trrtiiii-iiri)' 
nn non-virilcnt and ndneraMe pupulan* 'ns who p« .jc no threar in rite cnmmuniT) and 'hi *ukl Ikt 
rclr.tAcd In im cu&h idy- 

In an Octrriicr 20M rvpnrt, ( W'i#)' i-otvintifot ( !nmts.^iMnii DcUKltvn Pitbci, URS 

called fnr ihc jdiipTiiin of -t nitk o^seosmenr Itml tiul allnsvii L'd>. immigr.iHiin iil'IlcL-nt In nuke 
als^ idy .ind rcIcrosM.* dccismm bbi5cd nn the unK)ue circumsrancct oK mch iiid>vidu.irs Lnwe * Ihr tcxri 
would recommend ilic ilcicnlion of immi)<r.mls convicted nf ♦ere utf enmes or who pose ;i nsk t» • 
the puMic. ( >ihcr mi^.uits, who dn nnr pnsv ,i tlighr nr pulihc tMicty n'k. c«iuld Iw pl.iced mtn 
community support programs nr recjutred to follow other supm ision rcijuiremcnts - optioits that 
are MrvMtcr. cheaper, and more humiine. 

"‘Thu yc;ir alone, immigration detention will cost L .S. i.ixpjyers m( irr $2 billion,” added 1-lnc !)• 
Sigtnon, 1 .IRS Director tor Advocacy, 'it w in the ituerest of the L'.S. gtn emmcni and taxpayen in 
ensure th.tf the t'45. immigr mrm detention system pnjvidcs h.isic can- and treaimcnt for all pe*'plc 
navigating rfic unmigranmi ptfrccs.'." 

l.IRS IS nanonally rccngntxvd tor its leadership advi.*cating«.»n Iwhalf of retugitcs. .tsylum seekers, 
ittuccnmponied children, immigranis in detentmn. famibe's fr.wturcd by migratinii and other 
vulm rablc is tpulamm.', and for prrwiding scrx icrs to migrants thivHigh over gnusreots legal and 
socul serv ice paitncrs aerrus the C’nited Sbites. 

If V'-rti h.ivc any tjucstK»na about tins statement, plc:uie contact Hnc B. Sigmon, Dircctrjr for 
Advocacy, at (2t)2) 62(> 7'M3 or vta muil at e<ipiHMn{»t:lir<i.on 2 . 

Additional LIRS Detention Resources 

ihe March U. 2012 press relc.isr on the new Kanu-s (aninty (livil Detentnm (^itcr m.iv l>c 
Trod here: htrp:. /bit-b Ci^UX O . 

ihe Decemlicr I S, 2011 pres.' release tvpa'ssing c<*ncems wnJi increased hA 2012 immigrati<>« 

detenm>n spcmdmg niiy Ik- rvad here: http;/ /bn.ly/iiORo.^v . 

i’hc ()ctoKT2ni I report, I I f 'J. /^^(i*rv/yfw 

may be read heTe: \v\'.w.lirv.L.re_'dif_’tmy. 

'Ihe May 2-1. 2011 staiement on I I.R. 19.32, the Keep tXir (iommunitic.' Safe Act, may l)c rwd 
here: http:y/l>it.l> /n 4 l 0 L r . 

ihe December 22, 2tM)‘) stitcmcnt apjiLiudmg KZU's parole |Vibc) reforms may lie read here; 
hn j V ' /bn.h -Mkl ipnn . 

ihe October 7. 2000 sr.itemcnt m stipprirTof Dl IS’s announcement to overhaul the immigrant 'n 
deicnru m .'ystem may Ix' fi lund here: http:/ /lut.l) , iCi7l,/\V . 

Ihe I cbru.iry 2007 I.IKS and Women’s Refugee (ximmissitm re|Virt, (.y* I .»Wri; 

TIk iy<{nUwi of I mmxf till/ may l>c read here: Imp:/ bii.ly 'i\l5l_«.M . 


* Dr. Drm ^kmti, t fimir*' .W Drpanmret of tiooirUih) SreunfV, Immt^ratuxt 

ind ['j»f<*fccmcfll. titip. / a |»o\ i'd»w:lil>/*t>oui/t.»i’l'h.<.-!«/tdpp.<pdl/K.c <tfMint<n-qM.pdl (Oci. 6, 3**9). 

' loiriirnn Inuni^oim «od Rrrugcr Scnxe, i' •ln.it/itgijtw/ti: A Pitr^nim Ai^. 

h«r ■■ TBVALBixjc 91d2HJ'»i2BL^ .TD/Rim .SLLX3J.S<.-.LlHLJn\ PDI 

(Oct. ani). 



177 



NationalLotino 

EvangelicalCcxilition 


Statement for the Record 
Marcli 28, 2012 

House Subcommittee on Immigration Policy and Enforcement 

“Holiday on ICE: The U.S. Department of Homeland Security’s New 

Immigration Detention Standards” 

Introduction: 

The National Latino Evangelical Coalition is a national netw'ork of over 3,000 
evangelical congregations committed to working for the common good and speaking on 
behalf of the most vulnerable in our country. As a major advocate of the over 8 million 
U.S. Latino evangelicals we are committed to speaking publicly to the most pressing 
issues in our nation from an evangelical perspective. The National liitino Evangelical 
Coalition is committed to supporting public policies that strengthen families, defend the 
poor, and underscore the contributions of immigrants to the our nation’s health and 
future. 

Positive Fir.st Steps: 

As evangelical pastors we begin witli the conviction that all people are valued by God 
and merit human dignity and humane treatment. Many of the pastors in our networks 
have worked closely with these detainees and their U.S. citizen children. We are the 
pastors, chaplains, and prayer-partners of the.se men and women. For us, any standards 
that reify the United States’ commitment to the human dignity of all people are 
standards consistent with the best of our ethical heritage. We too hold with the 
Declaration of Independence that "all men are created equal.” Our calling for humane 
standards in all the immigration detention centers is grounded both in our faith and 
commitment to the equality of all human beings. 

Having these convictions, we affirm the Department of Homeland Security’s (DHS) 
announcement of new detention standards as a necessaty first step in the right 
direction. The 2011 Operations Manual Immigration and Customs Enforcement's (ICE) 
Perfoi-mance- Based National Detention Stimdards (PBNDS) provide some common 
sense fixes for many of the most serious problems in immigration detention centers. 

Immigrants in detention centers are extremely vulnerable to abuse. For many, language 
hurdles and fear of deportation present a barrier to reporting Instances of .abuse. For 
evangelicals, these revised detention standards are an important step for ICE to make 
good on its commitment to bringing safety and dignity to our nation's immigration 
detention system. 

Hispanic evangelicals were particularly saddened and troubled by the deaths of more 
than 100 immigrants in ICE custody since 2003. As faith leaders, we find it particularly 



178 


important that the Department of Homeland Security has addressed some of the 
concerns around substandard medical care, protections of vdctims of sexual abuse, and 
crisis intervention. We as faith leaders hold fast to the conviction that these protections 
are a reflection of a commitment to civility in U.S. laws. While we affirm these initial 
steps, our common humanity requires us to speak up for laws and standards that retlect 
this not just in name but also in deed. We need to move from standards to 
implementation. 


Where do we go from here? 

There is still much work to do. We are praying that these standards are quickly 
implemented in the detention facilities that hold over 30,000 immigration detainees 
each day. Our nation is at its best when we treat the most vulnerable among us with 
dignity, respect, and civility. 

Many of tlie detention facilities have as of yet not implemented the standards 
established close to 4 years ago. As Christians committed to botli good laws and 
compassion we believe it is not enough to establish humane standards. Implementation 
of these humane standards is a matter beyond political e.xpedience; it is a matter of 
moral urgency. Facilities that contract with ICE ought to be legally bound to comply 
with ice's detention standards. It is unimaginable to us that we have a national system 
that reflects substandard conditions for detainees in any part of our nation. We cannot 
have a two-tiered system where some detainees are treated with high ethical standards 
and others are subject to institutions who are non-compliant with the highest and 
noblest of our standards. 

In the end. the National Latino Evangelical Coalition stands for the most humane 
treatment of our detainees while praying for the day we find common-sense and 
humane solutions to our immigration challenges. We stand in prayerful vigilance of the 
detention centers and the federal guidelines that inform how pteople are being treated in 
these centers. Our faith and conscience says we can do better. 

Sincerely, 


The Rev. Gabriel A. Salguero 

President. National Latino Evangelical Coalition (NaLEC) 



179 


Testimony by Mary Meg McCarthy. 

Executive Director, Heartland Alliance's National Immigrant Justice Center 

Submitted to the House Judiciary Committee 
Hearing on the Department of Homeland Security's 2UI I Performance-Based National 

Detention Standards 

March 28, 2012 

Heartland Alliance's National Immigrant Justice Center (NUC) welcomed the Department of 
Homeland Security's (DHS) long-awaited release of the 201 1 Perfomiance-Based National 
Detention Standards (PBNDS). NUC appreciates the opportunity to submit this statement for the 
record to document why enforceable detention standards are desperately needed and outline why 
the PBNDS are inadequate 

As the number of detained immigrants swelled in a broken patchwork of jails throughout the 
country, the system urgently required reform Detained immigrants do not have access to 
appointed counsel Without legal counsel or information about their rights, they are particularly 
vulnerable While the release of the PBNDS acknowledges the need for reform, the 
administration can only ensure humane and fair treatment of detained individuals through 
meaningful and sustainable reform 

Specifically, upholding America’s commitment to justice will require legally enforceable 
standards, oversight and accountability, and sustainable laws/regulabons, including application 
of the Prison Rape Elimination Act (PREA) to immigration detention Congress and the 
administration must take steps to ensure that reforms include these protections 

Since its founding nearly 30 years ago, Chicago-based NUC, a non-govemmental organization, 
has been dedicated to safeguarding the rights of noncitizens, particularly those held in 
immigration detention. NUC advocates for immigrants, refugees, and asylum seekers through 
direct legal representation, policy reform, impact litigation, and public education. NUC and its 
pro bono network of 1,000 attorneys, the largest network of its kind, provide legal representation 
to approximately 10,000 individuals annually, including low-income immigrants, refugees, 
victims of human traflicking, unaccompanied minors, asylum seekers, and detained men and 
women 

As the co-convener of the DHS/NGO Enforcement Working Group (Working Group), NUC 
facilitates advocacy and communication between DHS and human rights organizations, legal aid 
providers, and immigrant rights groups. With a national membership of nearly 50 organizations, 
the Working Group advocates for full protection of internationally recognized human, 
constitutional, and statutory due process rights and humane treatment of noncitizens The 
Working Group's unique vantage point gives it valuable insights into national concerns while 
supporting efforts to reform the immigration system. 

The need for enforceable detention standards is critical 


- I - 



180 


I. The PBNDS were developed in response to frequent reports of egregious human 
rights violations in the immigration detention system 

Deplorable conditions of confinement persist for thousands of immigrants In remote jails across 
the country As reports of deadly neglect and inhumane conditions made national headlines in 
the waning years of the Bush administration. NUC repre.sented many men and women who 
sulTered egregious abuses 

• Domingo was in DUS custody from January 2006 to May 2010, detained at the Tri- 
County Detention Center (Lillin, Illinois) and at McHenry County Jail (Woodstock. 
Illinois) In April 2006, Domingo was transferred from DHS custody to the Kane County 
Department of Corrections in Illinois for two months When he was letumed to DHS 
custody in June 2006, DHS officers confiscated his denmres For more than a year, DHS 
refused to return Domingo’s dentures, despite numerous requests Without dentures, 
Domingo endured severe pain and was unable to eat an adequate amount of food 

• Roome, an asylum seeker from Pakistan, was detained by DHS from April 2006 to March 
2008, During her detention at McHenry County Jail and Dodge County Jail (Juneau. 
Wisconsin), Roome sulTered from numerous medical conditions for which jail slafi' 
refused to provide adequate treatment The most worrisome incident involved a painful 
lump on Roome’s shoulder, which a nurse diagnosed as a “fatty tumor” but failed to 
provide any additional information or treatment Roome also suffered from migraines, 
dental problems, and a skin rash during her time in detention Even when medical staff 
examined these conditions and prescribed treatment, other jail staff administered the 
treatments inconsistently 

• When Lynda arrived in the United States in March 2007, she requested asylum Instead 
she was separated from her infant U S. citizen daugliter. whom she was still 
breastfeeding, and detained for more than a year until she was released with an ankle- 
monitoring bracelet in February 2006, Lynda had visited the United States previously, 
and her partner, the father of her child, had already received asylum and offered to 
provide housing if she were released But DHS refused to release Lynda and she 
remained separated from her child during critical months of early development DHS 
finally released Lynda following numerous requests by her NUC attorneys. 

• Carlyle Dale, originally from Jamaica, has been a pemtanem resident of the United States 
for more than .JO years DHS detained Mr Dale in April 2005 and initiated deportation 
proceedings He spent the next five years in DHS custody Throughout his detention, Mr 
Dale suffered several serious health problems including chronic asthma and diabetes 
Government officials and medical staff repeatedly ignored his requests for treatment and 
failed to provide him with adequate medical cate, leading to multiple emergency 
admi-ssions to the hospital. Following months of NUC's advocacy, the U S. government 
ultimately agreed to release Mr Dale after the U S Court of Appeals tor the Fifth Circuit 
overturned the Board of Immigration Appeals' determination that Mr Dale should be 


- 2 - 



181 


deported In addition, NIJC filed a petition to the United Nations and The New York 
Times covered his stor>' ' 

II. More thiiii two years after the administration announced reforms, immigrant 

detainees cannot wait for protections 

In 2009. the Obama administration announced a series of reforms to create a more "civil'' 
immigration detention system, recognizing that the vast majority of men and women in DHS 
custody do not have criminal histories and pose no threat to the community Today, the 
administration’s commitment to create a “truly civil” immigration detention - one that includes 
sound medical care, adequate oversigitt mechanisms, and fiscally prudent detention practices - is 
yet to be realized Any meaningful reform must include the following crucial protections 

• Commitment to a timeline for implementation of the PB.NDS that ensures 
immigrants are protected from abuse, neglect, and inhumane conditions 

• Requirement of all facilities to adopt uniform and legally enforceable 
detention standards 

• Implementation of oversight procedures to ensure compliance with detention 
standards 

• Process by which DHS, advocates, and immigrants ean hold facilities 
accountable 

• Access to legal counsel for detained immigrants 

When DHS released the PBNDS, it announced a timeline during which it will renegotiate 
contracts with facilities to include the new standards That timeline did not include a deadline for 
contract negotiations with Intergovernmental Serv ice Agreement (IGSA.) facilities that hold both 
immigrant detainees and criminal inmates Such facilities hold more than 50 percent of the 
detained immigrant population nationwide^ and account for every immigration detention facility 
in the Midwest and the five remote county jails highlighted in the stories above NUC continues 
to receive reports from detainees who suffer egregious - and preventable - abuse and neglect at 
IGSA facilities. 

In April 2011, NUC filed a mass complaint with the DHS Office of Civil Rights and Civil 
Liberties on behalf of 1 3 men and women who were targeted for physical, sexual, and emotional 
abuse in immigration detention based on their identification as lesbian, gay, bisexual, and/or 
transgender (LGBT) Among the complainants was Raquel She came to the United States 
,seeking asylum afier she fled persecution in Mexico because she is transgender She was arrested 
by DHS and detained for more than a year at county jails in Illinois and Wisconsin She 
describes her experiences in DHS custody as “living in hell " She was physically assaulted, 
placed in solitary confinement, and called degrading names. Even after she was released and 
granted lawful status, she had visible scars of the physical abuse she suffered at the hands of jail 
guards She continues to suffer emotional trauma 


' Nina Bernstein. "Sick Detained Iminii'rani to Appeal to U N. for Help." 7 he .Vpu YoHi Timei. June 2-4. 2010. 
Iitip./Avuw mii nicS-CQin /20|i.i/ix,/25/iivr ceion /2 5dciau i.ltinil~' r=t&uim s ource=t uU lcri'ccd&iiini medinm=i\vii ter 
' ICE Fact Sheet Detention Management. November In. 201 1, 
him //\ v u w ICC |io\ .'ncus /l ibran/faeishcci.sldctciition-iiuinii-hini 


- 3 - 



182 


In October 201 1, four additional DHS detainees joined the civil rights complaint NIJC currently 
represents another transgender woman who was sexually abused at a remote IGSA facility in the 
southeastern United States At this moment, she continues to languish in solitary confinement 
alter reporting the attack 

In December 201 1, NUC released a report. Not Too l^te for Reform,' calling for the end of 
immigrant detention at three remote Midwest county jails that contract to hold DHS detainees 
and have generated numerous reports of human rights violations. Detainees at these jails 
frequently complain about unsanitary' conditions, medical neglect, and overuse of solitary 
confinement. 

• Phillip, an NUC client, suffered serious medical and mental health neglect while detained 
at Boone County fail (Burlington, Kentucky) in 201 1 Shortly before he was arrested and 
detained by ICE, a doctor told Phillip that a growih on his neck required further testing 
and might be cancerous. During his three months at Boone, he filed numerous requests to 
see a doctor but only saw nurses He never received an examination He began to 
experience headaches and had difficulty holding up his head After one month of 
detention at Boone. Phillip reported to the nurses that he felt depressed and alone The 
facility's response solitary confinement 

• DHS detainees at Tri-County continue to report acute overcrowding One DHS detainee 
reported that jail staff brought in extra beds so that some detainees slept with their heads 
next to toilets, even while the toilets were in use by others. The room where NUC 
regularly conducts “Know Your Rights” presentations has also been filled with extra 
beds 

• Two detainees at Tri-County reported that they had made as many as five written requests 
to use the law library but were denied access One of the individuals requested an asylum 
application from a guard and was told that access to the law library was blocked because 
the room was being used for video teleconferences 

• Another client reported numerous issues related to poor conditions while detained in 
2011 at Jefferson County Detention Center (Mt Vernon, Illinois) She was held from 
April until August 201 1, when she won her case and was released. While at Jefferson, she 
reported a water leak in the women's pod; constant air-conditioning which made the jail 
extremely cold: and dirty showers, bed linens, and jail uniforms When she closed the air 
vent and complained about the cold temperature, she was placed in solitary confinement 

III. DHS must ensure facility compliance with PBNDS guidelines 

While the PBNDS provide some improvements in conditions over earlier standards, the 
guidelines lack oversight provisions and carry no consequences for facilities that fail to comply 
For example: 


* National Immigrant Justice Ccnicr. A'ol Ton lat fi>r Refomt, December 2UI 1. 
Imp //x vw w-iiitnupraiiiimmcc orp/iioitoolniefoiTcform 


- 4 - 



• An NUC client detained at Boone reported that the facility failed to provide proper HIV 
treatment Within one day of his arrival at Boone, he told the nurse that he was HIV- 
positive, The nurse promised to call the clinic to obtain his medical history The client 
also complained of depression and high blood pressure and infonned a second nurse that 
he was HIV-positive This nurse also promised to make a doctor's appointment But, the 
diem received no medication for six weeks before he was transferred to Tri-County 
Detention Center There, the client once again reported his HIV status to a nurse, but the 
facility failed to conduct a medical examination or provide the client with medication 

Only alfer NUC's extensive advocacy did this individual receive medical treatment While every 
person in custody deserves robust human rights protections, it is noteworthy that people in DHS 
custody are held for civil purposes only Most have no criminal history and the vast majority 
poses no threat to the community Yet facilities that detain immigrants have no incentive to 
create non-punitive conditions. DHS does not take action in cases like the one described above 
unless advocates spend vast resources to make individual stories known 

The overuse of .solitary confinement has come under intense scrutiny in the criminal justice 
system'' and remains a problem in the immigration detention system In many cases, detention 
facilities' use of solitary confinement is abusive, as represented in the .stories above Under the 
PBNDS, immigrants can be held in administrative solitary confinement indefinitely, and it is not 
clear that there is any oversight of solitary confinement practices. These individuals can easily 
become invisible within the immigration detention system, especially if they do not have 
attorneys 

In the 2008 PBNDS. the use of force against immigrant detainees was to be “a last resort’" and 
“restricted to instances of justifiable self-defense, protection of others, protection of property, 
and prevention of escapes.”^ In the 201 1 PBNDS, facilities are given broad discretion over 
when to use physical force, the only guidance being that it should be used “to the minimum 
extent necessary to restore order 

IV. The If.S. government must implement leg.nlly enforceable standards in immigration 
detention because PBNDS arc a weak nod at detention reform 

Despite limited efforts by DHS to improve the detention system, thousands of detained men and 
women remain at risk for violence, medical neglect, and abuse. It will be virtually impossible to 
fix the immigration detention system as long as the government continues to arrest and detain 
record numbers of men and women who pose no threat to society. In achieving true detention 
reform, the Obama administration must abolish its overly harsh enforcement policies and work to 
reduce mass immigration detention, which costs taxpayers billions of dollars per year 


■' Erica Goode, '‘Pnsoiis Rcllunk isolation. Saving Money, Lives and Sanity," The New York Tunes. Marcli 10. 
2012, hun.Tivvvw.nvimics co m/2(U - aitil t/ns i'r eihm k imi-sotilarv -co nr mcnicm In ml '.'naac watncJ^all 
''us. Imniigralion and Customs Enforcemait, ^OOH Operaliom Manual ICK Peifamance-Bastnl yaliamil 
Derenlioa Slamlanb iPBMIXS). ti llp // wuu ice.go\/ dcic niioit -slaiidafds/2tats.- ‘ 

‘u s. Inunigralion and Customs Enforcement. 2011 Operaaoru Manual IC£ Ptifannance-Baml .Kaaoaal 
Delenlion Siamlards fPBS'IiS). IiU d .Vw vvvv icc [tov/dc i cmion-siandanls/2( ill/ 



184 


The government should close the worst facilities nationwide, including Boone County Jail, 
Jefllerson County Jail, and Tri-County Detention Center, and cancel plans to build new facilities 
mn by private prison contractors that are responsible for numerous documented human rights 
violations Instead, the government should release more individuals into cost-effective 
alternatives to detention programs 

When individuals are detained. DHS must adopt enforceable detention standards appropriate for 
the civil nature of the immigration detention population For example, PBNDS guidelines for 
menial health care are borderline negligent, allowing non-specialists to evaluate detainees for 
mental illness. Without appropriate treatment, individuals with serious mental health diagnoses 
are often unable to understand the nature of their detention or their proceedings. As a result. 
NIJC has encountered numerous individuals with mental illnesses who are held for prolonged 
periods of time in solitary confinement 

In addition, PREA. which Congress passed by a wide bipartisan margin in 2003 with the 
intention of protecting every detainee in the United Stales from sexual violence, could have 
saved Raquel and many others from the trauma endured in DHS custody DHS refuses to adopt 
PREA. even though these standards provide bener protections than the PBNDS.’ 

Congress must pass legislation that upholds basic constitutional and human rights for the more 
than 33,000 people held In DHS custody every day and holds detention facilities accountable for 
their treatment of detainees 


’ Lovisa Sianiiow. When Good Isn't Enough. HulTingion Post, March 6. 2lil2. 

hi m //\ v\v \\.h[ilTtin.'ioiipo.si.cQni/loM.sa-siaiuiuwA\h[:n-f’ood-ign-eiioi]ith b 13l7745.hunl 


- 6 - 



185 



Americans for 
Immigrant Justice 

formttty F/onrfa Mroioqi Centtr /F/AC? 


STATEMENT OF SUSANA BARCIELA 

Policy Director 

Americans for Immigrant Justice 
(Formerly Florida Immigrant Advocacy Center) 

Dehumanizing Detention 

March 26, 2011 


Americans for Immigrant Justice (AI Justice) provides free legal services to low-income 
immigrants, including detainees in Immigration and Customs Enforcement (ICE) 
custody. We also document unacceptable and inhumane conditions at Florida detention 
centers. In 2009, we published Dying for Decent Care: Bad Medicine in Immigrat ion 
Custod y, ( httD://www.fiacfla.org; reports/ DvingForPecentCare odf) detailing numerous 
\iolations of ICE detention standards at the time. 

One example is the ordeal of Miguel Bonilla. He almost died in 2008 when his appendix 
ruptured while at the Glades County Detention Center. Mr. Bonilla agonized for a week 
before a nurse saw him doubled over from pain and sent him to a hospital where he had 
emergency surgery. A treatable condition turned into a life-threatening emergency' that 
kept him hospitalized for 11 days. 

Mr. Bonilla, a Honduran, has lived in the United States since 1998, has two U.S-citizen 
children and now is a U.S. legal permanent resident. He was detained by ICE at the Port 
of Miami though he had no deportation order or criminal record. 

Wlien detained at the Glades jail in July 2008 at age 30, he was the picture of health; He 
didn’t smoke, drink alcohol or take drugs, prescription or otherwise. Soon he felt sick 
and repeatedly complained of increasing pain. Vet the jail's medical staff failed to order 
tests or recognize the symptoms of acute appendicitis, a condition that “a first year 
medical student should be able to recognize," according to a gastroenterologist 
described the symptoms. 

Mr. Bonilla tried to get medical care. After the abdominal pains started, he filled out one 
or more requests for medical help daily. Every time he swallowed food he would vpmit, 
He repeatedly asked for a doctor, pills, anything to stop the pain. Nurses gave him 
Pepto-Bismol, Maalox, salty soup and sent him back to his cell. When Mr. Bonilla 
complained that he couldn’t eat, an officer told him not to yvorry: He could live without 
eating for 30 days. 


* rf^ro^tnrffcri/tHJOTtcftdjcenfdtc/TfottKt/ftaar>o/'rof;t^r'itt ■>? 


3000 Biscaync Blvd., Suite 400 • Miami. Florida 33137 • 30S.S73.1106 - fax; 305.576.6273 • aijuatice.org 


186 


Mr. Bonilla described the agony and lack of medical attention; 

“I told [two nurses] that my stomach hurt very much. I was burning from 
the inside - 1 think that was when my appendix ruptured. They told me 
that they couldn't do anything because the)' weren't doctors. My stomach 
felt as if it was exploding. I asked for medicine for the pain, the headache^ 
and fever. The nurses told me they could not give it to me because I hadn't 
eaten.... I thought I was going to die.” 

Two days later, pain had rendered Mr. Bonilla speechless. Two Glades nurses still 
denied him care. He was in a chair clutching his stomach when an unfamiliar nurse, 
quickly recognixed his condition and sent him to the hospital. Despite his painful 
condition, he was handcuffed and shackled in transit. 

Mr. Bonilla was hospitalized n days. After the surgery, he overheard one nurse say that 
he would have died had he arrived an hour later. He had tubes inserted to combat raging 
infections. He could barely move, but Glades guards shackled his feet as soon as he 
regained consciousness. 

During this time, his family frantically was trv ing to find what happened to him. ICE 
failed to notify them of Mr. Bonilla's hospitalization or how to contact him, another 
detention violation. Family members had driven from South Carolina to immigration 
court in Miami. Instead of seeing Mr. Bonilla, they heard a Glades officer tell the judge 
that was hospitalized. For “security reasons," Glades jail refused to tell the family where 
he was hospitalized. Family also was barred from visiting or talking with him by phone. 

Mr. Bonilla wasn't feeling well when he was released from the hospital. "Everything hurt 
in my body," he said. StiU, he was forced to endure harrowing trips. Transported back to 
Glades in a small bus, he was handcuffed and shackled by jail officers who did not fasten 
his seatbelt. “Every time the bus turned, 1 felt as if 1 was about to fall,” Mr. Bonilla said. 
"Everything hurt in my body, but I had to push down with my feet to stop myself from 
falling.” 

Shortly after arriving at Glades, he w-as transferred to the Krome detention facility in 
Miami, a grueling 115 mile trip in his still delicate condition. Getting on the bus, which 
had high steps, was distressing; 

“1 couldn't raise my foot high enough to cUmb up the steps because it hurt 
so much,” Mr, Bonilla said. “I tried and tried with Glades officers watching 
me. I finally had to climb up the steps on my knees.” 

That wasn't the end of the cruelty. At Krome, he was placed in a cold room at q p.m. He 
ended up spending the night there on a cement bench and in pain. He didn't see the 
doctor until the next morning. Mr. Bonilla asked for pain medication. But the doctor 
told him he could not give it because his medical records had not been sent when he was 
transferred from the Glades facility. Not sending those records was another violation of 



187 


medical standards and particularly egregious in this case, given that Mr. Bonilla had just 
left a hospital and had not fully recover^ from a life-threatening illness. 

He wasn’t seen again by the doctor or by any other medical staff at Krorae. Nor was he 
given any medication during his eight days detained there. Even his release turned into 
an obstacle course. Though an immigration judge granted him parole and his family had 
the money to post bond, they had to wait two days for Mr. Bonilla to walk out the door. 
Mr. Bonilla’s experience in ICE detention was not a holiday. Such cruel and inhuman 
treatment is un-American and should be prohibited by enforceable detention standards. 



188 


Karnes City, Texas Detention Center 






190 



191 



Francisco Casteneda, testifying before the House Committee on the Judici- 
ary, four months prior to his death. 




192 


Bruises on Hiu Lui Ng’s body photographed at the hospital 
prior to his death. 



193 




194 




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Boubacar Bah calling for help while being restrained in detention. 





195 



Family visits Boubacar Bah in the hospital before his death. 





196 



Boubacar Bah in the hospital before his death. 





197 


Government Chart Documenting Cost Savings Achieved Through Denials of 
Requests for Medical Attention. 


TAR Cost Savings based on Denials 

10/1/2005 - 9/30/2006 



/ i ,¥i 



3 





042 - HUMAN IMMUNODEFICIENCY \flRUSiHlV| 

17 


052.9 - VARICELLA WITHOUT MENTION COMP 

3 

$12,405.35 




250.00 - DIABETES UNCOMPL TYPE If NO UNCNTRL 

2 


276.5 - VOLUME DEPLETION 

1 

$3,266.96 

276S1 - DEHYDRATION 

14 

$70,192.36 

292.0 - DRUG WITHDRAWAL SYNDROME 

4 

$13,866.21 


■{■njiiilllB 

$7,402.37 

1295.30 - PARANOID SCHIZOPHRENIA UNSPEC COMO 

1 

$8,089.36 


4 

$18,145.36 

ii III II III III 1 Hill 1 1 iiiiii 1 mi li ii 1 1 II — i 

1 

$6,402.16 

290.9*UNSP£CIFIED PSYCHOSIS 

2 

$11,668.60 

309.81 w prolong POSTTRAUMAT stress DISORDER 

1 

$5,920.85 


hhhhi 

$882,00 



$43,158,57 

E'>lK:Blih.hl:t4ldld44i-l4’k>»«radd:W=l!ttI.]!HMMiHH 

wmtMmm 

$68,043.52 

4t3.9 - OTH & UNS ANGINA PECTORIS 

1 

$3^40.36 

414.9 - U^JSPEC CHRONIC ISCHEMIC KRT DISEASE 

1 


427.89 -OTH SPEC CARDIAC DYSRHYTHMIAS 

1 

$3,222.17 

455.2 - INTERNAL HEMORRHOIDS WITH OTH COMPLICATION 

1 

$11,487.2« 

462 - ACUTE LARYNGITIS 

27 



16 


466.0 - ACUTE BRONCHITIS 

2 

$9,898.72 

475-PERiTONSlLLAR ABSCESS 

1 

$1,893.70 



$400.51 


1 

$6,606-27 

491.21 - OBSTRUCTIVE CHRONIC BRONCHITIS WITH EXACERBATION 

1 

$6,481.00 

493.90 - UNS ASTHMA WO MO STATUS ASTKMATiCUS 

3 

$10,842.93 

493.91 - UNSPEC ASTHMA W/STATUS ASTHMATICUS 

1 

$4,979.41 


HHDBHi 





658.9-0TH&UNSPECN0NINFECTr0USGASTROENTERlTiSiC0LlTlS 

1 

$3,059.69 

564.0Q* UNSPECIFIED CONSTIPATION 

2 

$6,213.66 

571.2- ALCOHOLIC CIRRHOSIS OF LIVER 

2 

$23,080.22 

573.3-UNSP£CiFIED HEPATITIS 

2 

$8,986.81 

575.0 -ACUTE CHOLECYSTITIS 

2 


578.0- HEMATEMESIS 

1 

$3,008.71 

578.1 - blood in STOOL 

2 

$9,545.50 

578.9 - UNSPEC HEMORRHAGE Gl TRACT 

2 

$8,063-04 

584.9 - UNSPECIFIED ACUTE RENAL FAILI^E 

1 

$6,341.32 

585 - CHRONIC RENAL FAILURE 

1 

$2,013.35 

592.0 - CALCULUS OF KIDNEY 

2 

$6,712.56 


- Page 1 - 

















198 


TAR Cost Savings based on Denials 

10/1/2005 - 9/30/2006 



T/VHs 

C.I.,1 1 1. 

599.0 - UTf SITE NOT SPECIFIED 

3 

516,088-23 

598.7 -HEMATURIA 

17 

$37,715.18 

620.2 - OTHER AMD UNSPECIFIED OVARIAN CYST . 

2 

$8,999.32 

625.9 - UNSPEC SYMPTOM ASSOC W/FEMALE GENITAL ORGANS 

1 

*4,883.46 

626.2 - EXCESSIVE OR FREQUENT MENSTRUATION 

1 

$5,050.35 

632- MISSED /PORTION . 

4 

$11,974.64 


3 

$13,104.66 

68Z4 - CELLULITIS&ABSC HAND NO FNGR&THUMB 

1 

$2,893.t© 

682.7-CELLULITIS&ABSCESS FOOT EXCEPT TOES 

2 

$11,646.56 

729.81 - SWB.LING OF LIMB 

1 

$4,190.48 

T80.(» - OTHER ALTERATION OF CONSCIOUSNESS 

1 

$6,971.68 


5 

$22,216,80 


4 

$15,868.97 






$23,075.48 

786.50 . UNSPECIFIED CHEST PAIN 

27 

$91,926.65 

786.59 - OTHER CHEST PAIN 

4 

$13,222,82 

786.6 - SWELLING. MASS. OR LUMP IN CHEST 

3 

*28,773.12 

787,01 - NAUSEA WITH VOMITING 

1 

$2,099.66 

789.03 - ABDOMINAL PAIN RIGHT LOWER QUADRANT 

3 

$7,528.96 

789.06 - ABDOMINAL PAIN, EPIGASTRIC 

2 

$6,196.39 


6’ 

$39,734.37 

795.5 - NONSPEC REACT TUBERCULIN SKN TEST W/O ACTV TB 

3 

$16,495,92 





HKHHB 





847.0 - NECK SPRAIN AND STRAIN 

1 

$1,869.81 


1 

$2,918.39 

924.11 - CONTUSION OF KNEE 

3 

$8,710.63 

959.01 - HEAD INJURY. UNSPECIFIED 

13 

$44,601.70 

1 I II 1 1 I 1 ■ 1 1 

6 


992.3 - HEAT EXHAUSTION, ANHYOROTIC 

1 

$2,C34.&4 

992.5 - HEAT EXHAUSTION. UNSPECIFIED 

3 


994.1 - DROWNING AND NONFATAL SUBMERSION 

' 1 

$1,891.82 

V30.00 - SINGLE LIVEBORN HOSPITAL W/O C-SECTION 

1 

$1,004.35 

V71 .2 -OBSERVATION FOR SUSPECTED TUBB^CULOSIS 

25 

$85,389.83 

TOTAL SAVINGS: 

329 

$1^72,887.09 


- Page 2 - 

















199 



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Smith: Deportation Manual a HosoitalUv Guideline for Illegal Immigrants 

Washington. D.C. - U S Immigration and Customs Enforcement (ICE) recently released over 
400 pages of new Performance Based National Detention Standards that dramatically expand 
privileges and resources to illegal immigrants in federal custody Specitlcally. the 
administration's new detention manual drastically expands medical and mental health services 
for illegal immigrants far and beyond regulations or law, increases access to legal services, 
institutes an extensive complaint process, and increases visitation, recreation, and numerous 
options for diet 

House Judiciary Committee Chairman Lamar Smith (R-Texas) issued the statement below 
criticizing ICE's new detention manual 

Chairm.m Smith: “The Obama administration's new detention manual is more like a 
hospitality guideline for illegal immigrants The administration goes beyond commonsense to 
accommodate illegal immigrants and treats them better than citizens in federal custody The new 
detention manual contains extensive and customized details for each illegal immigrant's stay, 
regulating everything from the salad bar to recreational activities to medical care Illegal 
immigration already costs .American taxpayers billions each year and these increased regulations 
force them to keep an open tab for illegal immigrants 

“This new manual is not a surprise - it's just pari of a broader pattern made by the Obama 
administration to reward lawbreakers This administration has already granted backdoor 
amnesty to potentially millions of illegal immigrants and has appointed a taxpayer-funded 
advocate to lobby for them 

“Our detention system is in need of refomi but not the kind the administration supports We 
should increase detention space, hut the President's budget makes substantial cuts to it and 
instead leaves illegal and criminal immigiants free to roam our communities 1 he Obama 
administration consistently puls illegal immigrants ahead of the interests of American citizens 
and taxpayers Whose side is the President on?” 

The Immigration Subcommittee plans to hold a detention oversight hearing at the end of March 


m 




200 


WRITTEN STATEMENT BEFORE THE 

COMMITTEE ON THE JUDICIARY: SUBCOMMITTEE ON IMMIGRATION POLICY 

AND ENFORCEMENT 

“Holiday on ICE: The II.S. Department of Homeland Security’s 
New Immigration Detention Standards” 

Submitted by 

Cheryl Little Esq., Executive Director, Americans for Immigrant Justice (Formerly Florida 
Immigrant Advocacy Center) 

March 28, 2011 

Dehumanizing Detention 

Americans for Immigrant Justice (AI Justice) provides free legal services to low-income 
immigrants, including detainees in Immigration and Customs Enforcement (ICE) custody. We 
also document conditions at Florida detention centers and have written numerous reports 
documenting our concerns (available at http://aiiustice.orai'"’paee id=66 4), ' 

This statement includes information from AI Justice reports that span more than two decades as 
well as significant new accounts. It is based on hundreds of interviews with detainees, AI 
Justice’s own observations, medical and detention records, and conversations with jail and 
immigration officials. 

ICE detainees are being held for civil violations only. Yet detention Standards adopted in 2000 
and 2008 were based on correctional models used to house persons in criminal custody. 

In 2009, after a rash of horrific detainee deaths and mistreatment, ICE announced ambitious 
plans to reform its detention system. One desperately needed reform: detention standards that 
truly address the mistreatment and abuse of detainees. Years later, we are still waiting for ICE 
standards with real teeth, standards that are enforceable and enforced - and prevent the appalling 
abuses we see to this day. 

Detainees remain at the mercy of the Department of Homeland Security (DHS). DHS officials 
determine where detainees are held and have control over how detainees are treated while in ICE 
custody. Oversight is woefully inadequate. 


1 At Justice Reports include: Dying for Decent Care: Bad Medicine in Immigration Custody, Februaiy 
2009; Securing our Borders: Post 9/11 Scapegoating of Immigrants, April 2005; Haitian Refugees: A 
People in Search of Hope, May 2004; I Running OutofHopely - Profiles of Children in INS Detention in 
Florida, October 2002; Supplement to A Double Standard of Treatment: INS Detainees In Florida, April 
2002; INS Detainees in Florida: A Double Standard of Treatment, December 2001; Cries for Help: 
Medical Care atKrome Service Processing Center and in Florida's County Jails, December 1999; 

Florida County Jails: INS's Secret Detention World, November 1997; Krome’s Invisible Prisoners: Cycles 
of Abuse andNeglect, July 1996. littD:/,'aiiiistice.org/?page id=664 


I 



201 


Their Own Words 

Americans for immigrant Justice has documented dehumanizing detention conditions for years. 

In our client’s own words, here are some examples: 

■ “ I'here are at lol of women here who are scared and depressed and many who have been 
hospilalized with menial heallh problems. There was one woman who was crying all Ihe 
lime and refusing to ear because she had been separated from her husband. We were 
very worried about her, so a couple of women and I wrote a letter to the immigration 
officials, telling them what was happening and requesting that she and her husband be 
placed in the same facility. One of the ICE officers came to talk to us; he told us that we 
were not allowed to send joint letters to them, and that we had broken the rules by 
sending a group letter. I felt really bad - 1 had been trying to help this woman and 
instead I just got in trouble. ” 

A detainees worried about a suicidal woman detained at the 
Broward Transitional Center in Pompano Beach, Florida in 2011, 

■ “At the (Glades County .Jail) clinic, J could no longer speak, only cry. A nurse told me 
she was sorry, but that the doctor had resigned so there was no doctor. I sat in a chair 
and clutched my stomach .... I thought I was going to die. 

Miguel Bonilla Cardona, who suffered a ruptured appendix in 2008 
at the ICE-contracted Glades County jail in Central Florida. 

■ “Once the sexual attack and rape were over, the effects » ere so awful. I felt like / ’m not 
Ihesame person. 1 was scared all the time. I used to be a really outgoing, friendly, 
confident, strong woman. But then I could hardly look people in the eye. I must express 
my deep frustration and sense of outrage toward the DHS that apparently knew, or 
should have known, that when I was placed in the .sole custody of Wilfredo Vazquez 1 
would be a likely victim. ” 

M.C., raped in 2007 by an ICE officer who transported her to a detention facility. 

■ “He had a valid passport and visa, hut when he requested political asylum, he was 
arrested and taken to the Krome detention center in Miami. His medications for high 
blood pres.sure and an inflamed prostate were taken away, and when he fell ill during a 
hearing, a Krome nnr.se accused him of faking his illness. When he was finally 
transported, in leg chaitLS, to the prison ward of a nearby hospital, it was already loo 
late. He died the next day. ” 

Acclaimed author Edwidge Danticat, describing 
her Uncle’s death in ICE custody in 2003. Following his death, 
A1 Justice had to file a lawsuit to obtain Joseph’s medical records. 

■ “I hcrve to pee on my self putting a towel on my laps [.sic] to prevent the urine [fiom] 
running all over myself When I have to do the other neces,sity [it] is very uncomfortable 
[andj unsanitary... Don ’tyou think I’m still a human being? ” 

Felipe Perez-Leon, a paraplegic denied handicap-accessible 
facilities in at an Atlanta jail in 2007. 


2 



202 


ICE detainees include pregnant women, families, the sick and elderly, legal permanent residents, 
DREAM Act youth, asylum seekers, torture survivors, victims of human trafficking and even 
U.S. citizens. They are among those targeted for deportation. Most detainees have no criminal 
record and pose no threat to U.S. communities. Most of those who have records, many of which 
involve minor infractions, already have completed their sentences and paid for their crimes. ICE 
warehouses most immigration detainees in local and county jails or in large, privately run 
facilities. 

Many government employees responsible for the care and custody of ICE detainees are 
competent and dedicated. Nonetheless, detainees remain in dire need of protection from abusive 
and arbitrary treatment. 

Typical problems in detention include: 

• Sexual assault 

• Excessive use of force 

• Misuse of isolation 

• Unsanitary and overcrowded facilities 

• Inadequate recreational time and/or lack of outdoor recreation 

• Lack of adequate access to attorneys and legal materials 

• Lack of competent, professional interpreters 

• Retaliation if detainees complain and lack of due process 

• Lack of independent oversight, leading to gross violations of detention standards and 
basic human rights. 

In addition to the above, substandard medical care is a chief complaint from detainees. AI 
Justice has documented troubling complaints including: 

• Wrongful and/or suspicious deaths 

• Delayed and denied urgently needed healthcare 

• Shortages of qualified staff 

• Improper care of mentally ill patients 

• Inadequate care of physically disabled patients 

• Denied, mistaken and insufficient prescription medication 

• Difficulty getting access to medical records 

Deaths in Detention 

After someone dies under suspicious circumstances, family members have to fight for answers. 

Valery Joseph, a Haitian who came to this country as a boy, had suffered from seizures and was 
23 years old when he died on June 20, 2008 at the Glades County Detention Center, where 
another detainee had almost died from an ruptured appendix a month earlier.^ 

While initially placed at Krome, Mr. Joseph was transferred to Glades. There he was chided by 
guards and some fellow detainees. Medical staff were well aware of his history of seizures and 


= A separate statement regarding Miguel Bonilla was submitted to this Committee on March 26, 2012. 



203 


that he had a learning disability. Yet the staff repeatedly cleared Mr. Joseph to be placed in 
“confinement,” a practice typically used to discipline detainees, despite his having most 
contraindications for confinement. A person who suffers seizures should not be left alone and 
unmonitored for long periods of time. Yet a fellow detainee described his frequent stays in 
confinement: “They mostly kept Valery in the hole. Tf he was out in the pod more than a couple 
of days that was a lot.” 

Mr. Joseph wrote a request to Immigration, begging to be sent back to Krome where they have a 
separate medical unit. He was not transferred and his health rapidly deteriorated. He died while 
in isolation. Autopsy results said he died of natural causes brought on by a seizure.^ 

Dr. Barry Crown conducted a thorough neuropsychological review of Mr. Joseph’s medical 
records. Dr. Crown’s conclusion: “It is my opinion that mental-health and health-care staff were 
negligent in their diagnosis, care, and treatment of Mr. Joseph.'* 

Mr. Joseph’s mother said she learned about her son’s death from Valery’s girlfriend, who’d 
received a call from the chaplain at Krome. Mr. Joseph’s mother left several messages at the 
Glades jail in an effort to learn where her son was. She went to the Glades jail and was told she 
needed to go to Krome for information. So she drove more than 90 miles to Krome, only to be 
denied entrance; a Chaplain met them at the entrance gate and told them all he knew was what 
was in the news — that her son had died. Valery’s mother had to hire an attorney to find out 
where her son’s body was. 

Our attempts to obtain information regarding medical care and staffing provided to Glades 
detainees initially were unsuccessful. ICE said we needed to talk to jail officials, Glades referred 
us to Armor, who the jail contracts with to provide detainees’ medical care, and Armor said they 
didn’t have to give us anything. 

Another Suspicious Case 

We had to file a lawsuit to get 81-year old Reverend Joseph Dantica’s medical records from ICE 
following his death in late 2004. An asylum seeker who had regularly travelled to the U.S. with a 
visa and always complied with the requirements set forth, Reverand Dantica was detained 
following his arrival at Miami’s airport. Though Rev. Dantica’s medical condition deteriorated 
during his detention at Krome, his lawyer was told he couldn’t be released until he passed his 
asylum interview. Moments into the interview. Rev. Dantica began vomiting violently and was 
accused of faking his illness. Eventually he was transferred to the prison ward of Jackson 
Memorial Hospital in leg restraints and died the following day. Reverand Dantica’s family was 
not allowed to see him either at Krome or in the hospital. 


See e.g.. Carmen Gentile, ’’Group Calls for Inquiry Into Death of Detainee," The New York Time, July 15, 
2008; Trenton Daniel, “Clues Sought to man’s jail death," The Miami Herald, July 15, 2008; Luis F. Perez 
and William E. Gibson, ’’Death of West Palm man in federal custody under scrutiny,” South Florida Sun- 
Sentinel, July 9, 2008. 

4 ’’Dying for Decent Care: Bad Medicine in Immigration Custody,” pp. 16-17, AI Justice Report, February 
2009 htr rj://-'vvnv .fiacfia.org.''reDorts.' D'JngForDecentCa re.Ddf 


4 



204 


Many female detainees have reported not receiving regular gynecological and obstetric care. 
There have been problems with pregnancies, as well. In December 2003 a client at BTC who 
had classic symptoms of an ectopic pregnancy was simply given Tylenol as the only treatment. 
Even after she began to bleed profusely, her complaints were ignored. When she was finally 
rushed to the emergency room she learned about the loss of her unborn child and the removal of 
her fallopian tube. 

Another BTC detainee, an African-born asylum seeker who was the victim of a politically 
motivated gang rape in her home country, was pressured to carry the baby to term. Only after AT 
Justice took the case was she informed that she could get an abortion at her own expense while in 
custody. This woman was eventually released and miscarried. 

Incident reports from the Glades County jail documented examples of unacceptable mental 
health treatment and the improper use of force on detainees with mental-health issues. Several 
incidents reflect the problem, which include the inappropriate use of mace and forcible restraint. 
When used on detainees with mental illness, such practices can threaten their mental stability as 
well as their physical health. 

Unacceptable Treatment 

One Glades report documented a November 2007 incident in which a woman diagnosed with 
depression and on suicide watch was sprayed in the face with mace. Her offense: She had spread 
feces on the walls of her holding cell and refused to clean it. There was no indication in the jail’s 
incident report that she posed a threat to her own safety, to other people, or to any property when 
she was maced. 

Instead, it appears that jail staff used a chemical spray on detainees for punitive reasons, a clear 
violation of ICE National Detention Standards which allow immediate force only if necessary to 
prevent a detainee from harming himself, others, and/or property “when a detainee acts violently 
or appears on the verge of violent action(s).’’ These standards also expressly forbid using force 
on detainees as a punitive measure. ^ 

In another disturbing case: A detainee, who had slit her wrists, was placed in isolation - a move 
that is more likely to exacerbate suicidal tendencies and mental illness than to stabilize or 
improve mental health. Worse, Glades officers ordered the woman to strip naked so they could 
place her in a restraint smock. She refused and threatened to bang her head against the wall. 
Eventually, she took off all her clothes except her underpants. 

Two officers then restrained her arms while another forcibly removed her undergarment. 

Officers wrapped her in the restraint smock and placed her in a restraint chair. All this was 
documented in a jail incident report. Such treatment of mentally ill detainees violates ICE 
Standards and contributes to making suicide a principle cause of death in detention. 

Our February 2009 report, “Dying for Decent Care: Bad Medicine in Immigration Custody,” 
documents how failure to properly care for detainees with mental health issues can pose a danger 


^ See e.g,. FIAC Lciler lo Joseph Greene. November 17, 2008. 


5 



205 


both to detainees and others housed with them. Additionally, we discuss in detail the routine 
neglect of disabled detainees, the serious problems facing detainees in obtaining proper 
medication, the unique obstacles ICE detainees who don’t speak English face in obtaining 
medical and mental health care, and unhealthy, unsafe living conditions in many of the facilities 
housing ICE detainees. 


Sexual Abuse 

AI Justice has also documented widespread sexual, physical and emotional abuse of detainees.'’ 
In 1990 there were serious, rampant complaints of sexual and other abuse at Krome. Yet despite 
the glare of publicity and high-level government investigations, little was done to address the 
issue. Two teachers and a nurse who spoke to reporters about the abuse were dismissed. Krome 
guards who publically complained of abuse felt their own safety was in jeopardy. 

Abuses of ICE detainees continued. In 2000 more than 15 officers were accused of sexually 
assaulting Krome detainees. Many of these same officers had been implicated in abuse charges 
in 1990. 

The 2000 investigation yielded few results. Two officers plea bargained, and all the female 
detainees were removed from Krome and placed in a maximum security Miami Dade County 
Jail, Turner Guilford Knight Correctional Center (TGK). Although the INS District Director said 
that all but one of the 36 INS standards were being met at TGK, a detailed and highly critical 
government review assigned an "at-Risk” rating regarding conditions for Immigration detainees 
and the women were all moved to the Monroe County jail in Key West in 2004. 

Reports of sexual abuse of detainees continued. In 2007, for example, an ICE agent was charged 
with raping M.C., a female detainee during transport. 

M.C., whose own statement was submitted to this Subcommittee on March 28, 20 1 1 , is an AI 
Justice client.^ ICE Officer Wilfredo Vasquez ultimately pleaded guilty to two accounts of 
sexual assaults and was sentenced to 87 months. The judge said that if the case had gone to trial, 
he most likely would have received a far harsher sentence. A pre-sentencing report 
recommended a sentence of up to 14 years.* 

AI Justice has learned of recent sexual abuse allegations at three immigration detention facilities 
in Florida. 

Cruel and Abusive 

Other abuses by guards are a longstanding concern. In 1998, detainees at the Jackson County jail 
(JCCF), 60 miles northwest of Tallahassee, Florida, provided detailed, credible declarations 
claiming that officers taunted them with racial epithets, threw them in solitary for requesting 


See written testimony of CheryJ Little, Executive Director, Florida Immigrant Advocacy^ Center, before 
the National Prison Rape Elimination Commission, December rs, 2000. 

r See Statement for the Record Submitted to Subcommittee on tmniigration Policy and Enforcement, by 
M.C., March 26, 2011. 

n Vanessa Blum, “Former Customs officer gets 7-year prison sentence in sex case,” South Florida Sun- 
Sentinel, July to, 2008. 


6 



206 


medical attention or food, beat them and subjected them to potent shocks from electrified 
(50,000 volt) riot shields and stun guns, sometimes when they were shacked to a concrete bed.^ 
Detainees called it “being crucified” 

Following complaints by advocates, all the Immigration detainees were removed from the 
facility but officials didn’t issue the results of their investigation until 2000. As late as April 
1999, investigators had reportedly attempted to interview only one of the 1 7 detainees who gave 
AI Justice sworn statements, and the one individual was deported without even having been 
interviewed. 

On April 18, 2000, AI Justice received a copy of the Department of Justice’s Civil Rights 
Division’s findings. They concluded, among other things, that certain conditions at JCCF 
violated the constitutional rights of Immigration detainees, as well as the constitutional and 
federal statutory rights of juveniles housed at the facility. They found deficiencies at JCCF in 
the following areas: medical and mental health care, use of force, security and protection from 
harm, fire safety and lack of exercise. They also found that the facility was not meeting its 
constitutional responsibilities regarding access to courts. ' ' 

An Electric Stun Shield 

Specifically, the investigation concluded that “facility staff engage in excessive and unwarranted 
use of restraints to control inmates, causing serious risk of bodily harm. This facility frequently 
uses four-point restraints (securing the inmate’s wrists and ankles to eye-bolts attached to 
cement-block beds with mattresses removed), a severe practice high up on the continuum of 
control techniques, as a first step when inmates become boisterous and do not respond to verbal 
counseling. In a number of these instances, four-point restraint was an unreasonably excessive 
control technique.” The investigation also found that the Jackson jail had a practice of restraining 
inmates in a prone position (on their stomachs) which created a risk of asphyxiation. 

Investigators also noted: 

“At JCCF, four-point restraint is used for extended lengths of time without 
enough guidance to staff about whether continuation is appropriate. JCCF 
sometimes uses stun shields to gain inmate coinpliance when inmates fail to obey 
orders. Stun shields have been used at JCCF in a variety of ways. When the 
shield is activated, a startling blue arc of electricity may be seen at various points 
on its face. The most severe use of the shield is activating it and placing it in 
contact with the inmate’s body, which causes most individuals to lose muscle 
control and collapse.”*’ 


9 See e.g., Andres Vighicci, “Immigrants allege abuse at jail in N. Florida,” The Miami Heraid, Juiy 30, 
1998; Teresa Means, “ Detainees held by INS say jails rife with abuse,” the Boston Globe, August 2, 1998; 
“INS Detainees Abused in Jail, Advocates Allege,” Reuters, July 31, 1998; “A shock to the System,” Miami 
New Times, August 5, 1998; Andres Vighicci, “Actirists Assail probe of jail torture,” The Miami Herald, 
June 24, 1999. 

Andres Viglucci, “Activists assail probe of jail torture,” The Miami Herald, June 24, 1999. 

" Letter to Cheryl Little and Joan Friedland, FIAC attorneys, from Dana L. Shoenberg, Special Litigation 
Section, Civil Rights Division, U. S. Department of Justice, April 18, 2000. 

'= Ibid. 

« Ibid. 


7 



207 


That same year, on September 22, 1 998, detainees in Florida’s Manatee County jail said they 
were cuffed, stripped naked and dragged through their own waste back to cells flooded with 
water from five sprinklers broken by detainees during the protest. Detainees also claimed they 
were stripped naked and left in freezing cells for hours as punishment and that County Sheriff s 
deputies provoked the disturbance by staging a raid in retaliation for detainees protesting over 
poor Jail conditions and treatment. 

Disturbing Video 

The Assistant fNS Director said “we understand [the detainees] were mistreated in some way.” 
INS also asked Manatee County officials to investigate. Detainees told AI Justice that the 
entire incident (more than an hour) was videotaped by Jail officials and we filed a Freedom of 
Information Act request to obtain the video. We received only about 1 5 minutes of videotape, 
and it is disturbing. 

While AI Justice hasn’t received complaints as serious as those described above, there is still 
cause for concern. During a visit to Wakulla jail last November, a detainee said he witnessed a 
guard slam another detainee onto the ground because the detainee was verbally arguing with the 
guards. When another detainee refused to take a sleeping pill because he wanted to take it later at 
night he was placed in segregation without a disciplinary order, a violation of standards. Eleven 
detainees also described their medical complaints. 

Other Concerns 

Detainees have also complained about ofticer mistreatment based on religious and racial bias. 
Recently a Wakulla detainee reported that he overheard a staff member tell a Muslim detainee 
that she would not mail one of his packages because, “there might be a bomb in it.” Detainees 
also have complained that guards disrespectfully call them “boys.” One detainee noted that 
Wakulla officers frequently and unnecessarily yell at detainees. He also stated that the guards, 
“Treat us like animals.” 

Another frequent complaint from detainees is the exorbitant cost of phone calls. Detainees report 
it costs $15 for a 10 minute domestic phone call at Wakulla - a Jail so remote that most relatives 
cannot visit. If they do manage to visit, they can only see their loved ones via video - a sterile, 
disappointing experience. Baker County detention facility also offers only video visitation. This 
runs counter to ICE standards that encourage visitation to maintain detainee morale and family 
relationships. Considering that many relatives may be seeing detainees for the last time before 
they are deported, a video visitation should be unacceptable. 

Immigrants detained at Baker today, many of whom have been heid long term, have no exposure 
to sunlight. The recreation room is covered with a concrete roof; the only window is high up on a 
side wall, with mesh to allow fresh air in. We are concerned about the water at Glades, a yellow, 
murky, foul -smelling liquid provided to detainees. 


Seee.g., Andres Vighicci, “INS detainees: Officers were Violent," The Miami Herald, December 23, 
1998; “Another Ugly Tncident," Editorial, The Miami Herald, December 24, 1998. 



208 


Deplorable Mistreatment 

Today, detention abuses and unacceptable conditions shll abound nationwide. ICE documents 
obtained by the Houston Chronicle last year via a Freedom of Information Act request revealed 
deplorable detainee mistreatment. 

Among the most disturbing discovery was the disconnect between the findings of ICE’s own 
inspectors and those of ICE-paid private monitors: While ICE publicly released glowing reports 
of detention facilities issued by contracted monitors, its own inspectors documented serious 
violations of detention standards that were not made public. For example: 

• A county j ail in Iowa failed to provide medication to detainees diagnosed with 
tuberculosis. 

• A Houston center run by Corrections Corporation of America had deficiencies in medical 
care, use of force and "abusive treatments toward detainees." It fired one employee for an 
improper relationship with a detainee. Other employees were counseled for cursing and 
yelling at detainees. 

• Women at the Rolling Plains Regional Jail and Detention Center in Texas, run by a 
corrections company, told ICE inspectors that the hot showers burned their skin and made 
their hair fall out. 

• And at the Mira Loma county jail in California, managed by the Los Angeles Sherriff s 
Department, ICE inspectors were told by its inspectors to “serve a subpoena” so they 
could see the medical records of a detainee with healthcare complaints. For years, ICE 
inspectors have found other deficiencies, including improper Laser use and giving 
Tylenol to cure or prevent detainee illnesses. Yet ICE continues to contact with this 
facility. 

Though immigrants in ICE custody have a number of rights, including the constitutional 
protection against cruel and unusual punishment, they often don’t know those rights or find it 
impossible to assert them in such an environment. 

‘A Great Injustice’ 

Perhaps the greatest fear detained parents have is losing custody of their U.S. bom children 
forever, a legitimate concern. Parents may not know that custody hearings have been scheduled, 
and, even if they do know chances are they can’t participate because they’re in detention. 
Caseworkers may not even know that a parent is in detention or where the parent is detained. 
Parent’ s ability to participate in proceedings may depend on whether they have an attorney or the 
attitude of detention staff Even parents who are aware of upcoming hearings often don’t know 
they have the right to appear telephonically while in detention, or are unable to assert that right 
with detention staff. 

Blanca Benitez Banegas knows this firsthand. She and her common-law husband were placed in 
ICE custody shortly before Christmas 2006, and their two U.S. citizen boys were placed in foster 


'5 Susan Carroll, ICE paints bleak picture of detention system. The Houston Chronicle. Oct. lo, 2011. 

lUtp;,'’Zyww,clu:oii,cony.'jiew.s/hmjstonHems/arti(^/ICI^paiutS7bieak:.piH^^^ 

22 0042 8. phi) 


9 



209 


care — even though Blanca, who had never committed a crime, begged ICE to place them with 
her sister, a legal permanent resident. For two long months, while in ICE detention in a Florida 
jail and two Texas jails, Blanca had no idea where her sons were, and they had no idea where she 
and their father were. 

When Blanca was finally transferred back to Florida she had no idea that a court hearing was 
scheduled to determine who would have custody of her boys. Blanca said: 

“To suddenly tear us apart and not tell my children where I am and where their 
father is, and to not tell me where my children are for two months — I think this is 
a great injustice. I’m just fighting for my children and my family to be together. 

But I felt like I was being punished for a terrible crime. I’m not a criminal and my 
children aren’t criminals.”'** 

Lost in Detention 

Local detention facilities are a secret detention world. In Florida, these facilities are located in 
isolated areas, ranging from the Monroe County Detention Center in Key West, Florida — at 
Florida’s southern tip — to the Wakulla County Facility — in north Florida. Some, such as the 
Broward Transitional Center are operated by private corporations such as the GEO Group. 

County jails are, by definition, short term facilities. They are not designed for prisoners who are 
held a year or longer. Asylum seekers, who have committed no crime and are running for their 
lives, are often mixed with ICE detainees and jail inmates with criminal convictions. Asylum 
seekers and detainees who finished serving criminal sentences are treated as criminals and 
transported in handcuffs and shackles, sometimes even within the facility. 

Many immigrants are detained for months or even years. However, ICE detention facilities are 
not designed for long-term prisoners. Neither county jails nor large, ICE owned and managed 
detention sites have the programs, services or medical care offered in federal prisons and other 
facilities that keep prisoners for more than six months. 

ICE detainees are often classified as maximum security prisoners even if they are asylum seekers 
or have not been convicted of a crime. Unlike criminal prisoners, detainees are not eligible for 
work release programs or to be trustees. Indeed, as “maximum security” prisoners, ICE detainees 
with criminal convictions generally face a harsher security classification than they had if they 
served a sentence. 

Standards Not Binding 

ICE has taken no visible action to ensure that Florida’s county jails meet any standards regarding 
treatment of detainees. Contracts we’ve seen between the federal government and the counties 
are absurdly incomplete and provide few requirements as to how the counties should treat ICE 
detainees - even though Florida county jails are not subject to state supervision. 


"• Declaration of Blanca Banegas-Benites to At Justice (then Florida Immigration Advocacy Center), 

March 23, 2007; Alfonso Chardy, Sent Away. The Miami Herald, July 27, 2007. 

10 



When detainees are held in a county jail, they fall into a black hole. Their TCE files often do not 
follow them when they are transferred. Their personal property, including documents needed for 
their cases, may be left behind at other facilities. Officials running the jails know nothing about 
immigration law or procedure or the status of detainees’ cases. Detainees have great difficulty 
contacting their deportation officers, who may be far away. 

In county jails, detainees’ ability to find an attorney is severely circumscribed. There are 
generally no pro bono groups in the area. The list given to detainees of legal services agencies 
providing free or low-cost representation is incomplete, inaccurate, and useless. Often, the 
detainees have limited ability to reach outside because jail telephones only permit collect calls or 
calls are prohibitively expensive. 

Detainees often are transferred from facility to facility and may end up a long distance from their 
lawyers. Their lawyers have difficulty contacting them by telephone because they cannot call 
them directly and generally cannot leave messages for detainees to call. Mail sent by lawyers to 
detainees sometimes does not reach them. Attorney-client privilege is often undermined by jail 
officers. 

Coerced Deportations 

Video conferencing of immigration court hearings places detainees at a disadvantage - especially 
when their attorney is far away and difficult to contact. Adding insult to injury, a South Florida 
detention facility for minimum security detainees has only one immigrationjudge, and this judge 
has approved 10,000 stipulated orders for deportation in the last three years, a national record. 
How many detainees were coerced into signing those orders by detention officers or Customs 
and Borders Patrol? 

The law library is a critical resource for detainees who cannot find or afford an attorney and are 
representing themselves in deportation proceedings. Detainees at numerous detention centers 
report that: libraries lack research materials, long waits to use the library, little time available for 
using the library, broken computers and printers. At Wakulla County Jail in North Florida only 
one or two computers are functioning at any given time. The detention standard requires “regular 
access” to the law library, defined as no less than five hours a week. This standard is routinely 
violated according to detainees. At Wakulla, recent visits to detention centers raise concerns 
about the continued disregard of detention standards. 

For detainees who have attorneys, private phone calls to their counsel are essential. Yet Wakulla 
jail violates the detention standard that states detainees “will be able to have confidential contact 
with attorneys and their authorized representatives in person, on the telephone, and through 
correspondence.” Wakulla also has a staff person remain in the room during the entire attorney- 
client call. These violations of standards seriously curtail detainees’ right to defend themselves 
against deportation. 



211 


CONCLUSION 

The current detention policy is overly broad and inhumane. Immigrants who are neither 
dangerous nor likely to flee should not be detained. Those currently detained — whether severely 
ill, asylum seekers or others challenging deportation orders — should be fairly considered for 
parole and other alternatives. The alternatives are cheaper, more humane, and can be structured 
to ensure participants regularly appear before immigration authorities. 

While innocent detainees continue to suffer needlessly, the surge in immigration detention has 
greatly benefited private prison operating companies, like Corrections Corporation of America 
(CCA) and the GEO Group, whose stocks sharply increased following President Bush’s 
February 2006 proposal to increase spending on immigration detention. The same cannot be said 
for ICE detainees, 84 percent of whom are without attorneys. Unlike U.S. criminal suspects, ICE 
detainees are not entitled to a court-appointed lawyer. Asylum seekers are more than twice as 
likely to be without attorneys as non-detained asylum seekers. Those represented are four to six 
times more likely to win their case. 

Without independent monitoring and public scrutiny of its detention centers, ICE continues to 
place detainees in unacceptable facilities that violate ICE standards and place detainees at risk of 
abuse. 

In such an oversight vacuum, ICE tolerates a culture of cruelty and indifference to human 
suffering. Detainees routinely report being treated as criminals, being abused physically and 
sexually, and having painful medical symptoms ignored. They also face retaliation for 
demanding better treatment or complaining that fellow detainees have been abused. We do not 
know if this happens because the detainees are foreign, imprisoned, have no lawyer to defend 
them or all of the above. We do know from years of direct experience that cruel and inhumane 
treatment of detainees is a systemic problem. 

We are pleased that the administration is trying to improve conditions in immigration detention. 
We admire the work of Dr. Dora Schriro, who recommended the shift to civil detention and 
numerous improvements in detention conditions. We also understand the difficulty of 
implementing reform when the ICE officers union has called for the resignation of ICE chief 
John Morton and claims that reform is making detention too soft. 

That’s not what we see in Florida’s detention facilities. We see detainees with no criminal 
history treated like hardened criminals while their basic human rights routinely abused. The 
2011 Performance-Based National Detention Standards are a step in the right direction, but are 
not enforceable and likely won’t benefit detainees held in county jails. Moreover, like the earlier 
Standards, they’re based on models used to incarcerate criminal offenders. 

Only independent, external scrutiny and enforceable detention standards will ensure that the 
DHS and ICE carry out their moral and legal responsibility to provide decent and safe conditions 


Scott Lewis and Paromita Shalt, Detaining America 's Immigrants: Is this the Best Solution? Detention Watch 
Network, National Tmtnigration Project, and Rights Working Group. 
htto:/./65.36. 162.! 62/ri!cs /’RctdD calDetention.ndr. 


12 



212 


for detainees who are in civil detention. Given the dramatic increase of detainees over the 
years — ICE detainees represent the fastest growing prison population in the country — the need 
for proper scrutiny is more critical now than ever. 

Detention clearly is no joke. Labeling the March 28, 2012 Congressional hearing “Holiday on 
ICE” is particularly offensive and demonstrates serious disregard for the abuses so many 
detainees have had to endure. 

Lives are at stake. The urgency for enforceable detention standards cannot be overstated. AT 
Justice makes the following recommendations with a sense of outrage at the mistreatment of 
immigration detainees over the years and frustration with the lack of improvement. Yet it also 
does so in the hope that enforceable detention Standards and effective oversight will result in 
good faith safeguards that better protect the basic rights of those in U S. Immigration detention. 

To the Administration and Congress 

• Establish an independent oversight commission composed of immigration experts to 
oversee detention conditions in U.S. immigration custody. Its mission: to ensure that the 
conditions and practices for detainees meet established legal and human-rights standards. 

• Strengthen and issue regulations that codify ICE detention standards so that all 
immigration detention facilities provide decent and safe conditions by force of law. 
Require ICE detention facilities and all contracted facilities to annually report their 
compliance with the detention standards. 

• Require an independent investigation of each immigration detainee death. Require DHS 
to annually submit a report to the Judiciary Committees of the U.S. House and U.S. 
Senate with detailed information on all the deaths, including the cause of death and the 
results of related investigations. 

• Promote alternatives to detention by shifting ICE funding from detention beds to proven, 
community-based alternatives. Prioritize the release of vulnerable detainees, such as 
detainees with ongoing medical or mental-health issues. 


o